by John Yoo
Clement served as Ted Olson's deputy during difficult times. When Hamdi was transferred to South Carolina, I had gone to Olson to brief him about the issues. I told him I was certain his case or a similar one would go to the Supreme Court, one way or the other, and that it would eventually involve the question of whether the United States was at war with al Qaeda. We discussed the formation of a special group, using the solicitor general's top-flight litigators, joined by OLC, the criminal division, and the civil division, to take control of the detainee cases. After giving it some thought, Olson agreed and delegated primary responsibility to Clement. It is a testament to Clement's legal skills, hard work, and political acumen that he was promoted to succeed Olson as solicitor general at an incredibly young age, even after Gonzales took the helm at the Justice Department.
The case was argued in early October 2002. Three months later, the Fourth Circuit came back with a victory for the government. Hamdi's detention was upheld because it was "undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict." His lawyer had conceded as much at oral argument, which relieved the court of having to hold an evidentiary hearing.13 The Fourth Circuit also agreed that the power to detain Hamdi derived directly from the President's and Congress's powers to wage war. It observed that judicial restraint in wartime prohibited a federal court from intrusively inquiring into the details of Hamdi's capture. Judge Wilkinson also concluded that Congress implicitly authorized the power to detain Hamdi with its authorization of the use of force, and that Hamdi's status as an American citizen didn't preclude his detention as an enemy combatant. "One who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such."14 The Supreme Court, however, agreed to hear the case in 2004. This was a surprise to me, and probably to most of the Justice Department.
Even as the judge in South Carolina was attempting to try Hamdi's case, the third and most serious case appeared. Jose Padilla was an American who was born and raised in the United States. He had gotten involved in Miami drug gangs, was convicted of murder in 1983 as a juvenile, served at least two jail sentences, and in 1998 moved to Egypt. Assuming the name Abdullah al Muhajir, he traveled in Pakistan, Saudi Arabia, and Afghanistan, where he came into contact with top al Qaeda leaders. In a meeting with Abu Zubaydah, al Qaeda's operational planner, Padilla discussed a plan to detonate a dirty bomb in a major American city. Padilla underwent al Qaeda training and conducted research on wiring explosives at an al Qaeda camp. When the United States and its allies invaded Afghanistan, Padilla moved to different safehouses to avoid capture, and eventually escaped to Pakistan. In Pakistan, Padilla met with Khalid Sheikh Mohammed, one of the al Qaeda leaders who planned the 9/11 attacks, and discussed schemes to destroy apartment buildings, hotels, and gas stations in the United States. On May 8, 2002, Jose Padilla flew to Chicago from Pakistan, with an intermediate stop in Switzerland.15
Intelligence had provided our agents with not only Padilla's name, but his exact itinerary and plans for attack. Padilla left Pakistan with cash, travel documents, and communications devices. As he stepped off the plane in Chicago, he was arrested pursuant to a material witness warrant issued by a New York federal grand jury investigating the 9/11 attacks. This warrant allows the government to detain an individual who is a witness to a federal crime, but who might attempt to flee. It was widely used in the weeks after the September 11 attacks to detain individuals suspected of ties to al Qaeda. The FBI found no weapons or explosives on him. Government agents transferred Padilla to the maximum security wing of New York City's Metropolitan Correction Center and presented him to Judge Mukasey of the federal district court, which appointed him a lawyer. After meeting with his lawyer, Padilla refused to reveal any information to interrogators and instead moved to have his arrest warrant thrown out.
Of these three cases, Padilla was by far the most important for national security. Lindh and Hamdi could provide information on the structure of al Qaeda and the Taliban, who was in the chain of command, how they recruited and trained, and the identities of other recruits, but their knowledge was limited to operations in Afghanistan and Pakistan. That knowledge turned stale as the invasion of Afghanistan receded further into the past. Ultimately, they were equivalent to privates in al Qaeda.
Padilla, however, was a much greater threat, and an intelligence prize. He came to the United States to carry out a future terrorist attack. He didn't enter the country with any equipment or plans, and clearly didn't have the resources or expertise to construct and detonate a dirty bomb on his own. Where was he headed? Who was he to meet? Where would he get the money to buy parts for a dirty bomb? Where would he get the radioactive material? Did he have contacts in a facility with nuclear material? We thought he must have entered the country either to meet with a sleeper al Qaeda cell we had missed in the months after 9/11 or to establish a base of operations for other operatives to follow.
From our reconstruction of the 9/11 attacks, we knew that al Qaeda engaged in meticulous planning, staffed its operations with multiple agents, and spent time and resources to allow its operatives to train, conduct reconnaissance, and move into position. Capturing Padilla opened the possibility that we could roll up a dangerous sleeper cell already in the United States, or use him to lure any operatives following him into the country.
Michael Chertoff, then the head of DOJ's criminal division, was among those who worried that we could lose Padilla if he remained in the criminal justice system. Chertoff was one of those rare combinations in Washington: hypercompetent and intellectually brilliant, with a non-partisan reputation. He had gone to Harvard for college and law school. Legend has it that Chertoff was so intense in law school that he became the model for the type of aggressive, take-no-prisoners students portrayed in the book One L by Scott Turow and the movie The Paper Chase. He had barely mellowed with age. He had clerked for Justice William J. Brennan, the leading liberal intellectual on the Supreme Court from the 1950s through the 1980s, and then served as a career federal prosecutor in New Jersey. He won a high-profile case against the mob and eventually became the U.S. Attorney for New Jersey. I met Chertoff when I served as Senator Hatch's general counsel on the Senate Judiciary Committee. He worked for Senator Al D'Amato as chief counsel of the special Senate committee investigating the Whitewater scandal. Chertoff is one of the most impressive lawyers I have ever met. He could operate at all levels of the law, from deposing witnesses to conducting a courtroom trial to debating the niceties of high constitutional theory. His tongue was as sharp as his mind, either in asking questions or tagging someone playfully with his wit. With his obvious political skills and experience, Chertoff was supported by both of New Jersey's Democratic senators in 2003 when President Bush nominated him for a prized seat on the federal appellate court in the state. But after only two years, Chertoff could not sit still as a federal judge, and he accepted Bush's appointment to the cabinet as the secretary of the Homeland Security Department.
We didn't think we could hold Padilla for long. If Padilla knew he had to wait only a few months, he would never reveal his al Qaeda contacts. Over the next few weeks, lawyers at Justice, Defense, the CIA, and the White House worked quickly to develop an alternative to releasing him or charging him with a minor violation of law. After careful thought, we recommended to the President that an American could be taken into custody as an enemy combatant, but only if several agencies independently agreed. OLC reviewed the material on Padilla to determine whether he could qualify, legally, as an enemy combatant, and issued a legal opinion to that effect.16 Chertoff's criminal division provided a "fact memo" with information on Padilla based on FBI and other sources of information. Based on its own intelligence, the CIA concluded that Padilla should, as a matter of policy, be transferred to military custody as a combatant. Rumsfeld's office conducted its own independent analysis, based on its own sources of information and on the CIA's work
. Ashcroft relied on the OLC opinion that the military could legally take Padilla into custody, and also agreed with the CIA and DOD's recommendation that he be held as a combatant. Rumsfeld's office then sent a package of all these memos and findings to the White House, where it was reviewed by Gonzales and his lawyers. Gonzales briefed the President personally.
As the person who worked on the OLC document and had the proper clearances to read the intelligence reports, I not only wrote memos, but also assembled them and carried the growing pile of paper to its designated stops. I sometimes wondered what would happen if I were hit by a car while walking around Washington, D.C., with my beat-up, government-issue locked blue pouch of classified documents clutched in my arms. I was amazed at the level of paperwork and layers of review that the capture and detention of one enemy combatant generated in the middle of a war, but it signaled the importance placed on Padilla, and the care we all took, knowing both that an American's liberty was at stake and that this case would set a precedent for the future.
On June 9, 2002, President Bush ordered the Justice Department to transfer Padilla to the Defense Department pursuant to his authority as commander in chief and Congress's AUMF. In his order, Bush determined that Padilla "is closely associated with al Qaeda, an international terrorist organization with which the United States is at war;" that he "engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism" against the United States; that he "possesses intelligence" about al Qaeda that "would aid U.S. efforts to prevent attacks by al Qaeda on the United States"; that he "represents a continuing, present and grave danger to the national security of the United States"; and that military detention "is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States."17 Defense transferred Padilla to the brig in Charleston, South Carolina. Ashcroft announced the decision to the American public in an ill-advised television address from Moscow, where he was on a diplomatic trip. His mention of the dirty bomb sent the stock market down several dozen points.
Two days later, Padilla's lawyer filed for a writ of habeas corpus in New York City, arguing that his detention by the military violated the Constitution. While Judge Mukasey agreed that the President had the authority to detain Padilla as an enemy combatant, he also decided that Secretary Rumsfeld was the proper defendant,18 that Padilla could challenge disputed facts in a habeas proceeding, and that the standard to be used in reviewing the government's facts would be a relatively generous "some evidence" standard. A court of appeals panel reversed and ordered Padilla released, concluding that neither the President's commander-in-chief power nor the AUMF authorized detention of an American on American soil, even if he had associated himself with the enemy.19 The Bush administration filed an appeal with the Supreme Court, which it granted.
Some civil libertarians believe that judges should supervise the military's detention of enemy combatants not only in the United States, but anywhere in the world. They contend that U.S. citizens like Hamdi and Padilla should be released or tried in civilian courts, and that courts ought to superintend captured enemy aliens held abroad, such as at Guantanamo Bay. In the weeks after 9/11, lawyers at State, Defense, the White House, and Justice formed an interagency task force to study the issues related to detention and trial of members of al Qaeda. The one thing we all agreed on was that any detention facility should be located outside the United States. Civilian criminal courts might not even be able to handle the numbers of captured terrorists--overwhelming an already heavily burdened system. We researched whether the courts would have jurisdiction over the facility, and concluded that if federal courts took jurisdiction over POW camps, they might start to run them by their own lights, substituting familiar peacetime prison standards for military needs and standards. We were also strongly concerned about creating a target for another terrorist operation.
No location was perfect, but the U.S. Naval Station at Guantanamo Bay, Cuba, seemed to fit the bill. Or, as Rumsfeld remarked at a press conference, Gitmo was "the least worst place" for the detention facility, a phrase the base personnel printed up on T-shirts. Gitmo was well-defended, militarily secure, and far from any civilians. The first Bush and the Clinton administrations had used Gitmo to hold Haitian refugees who sought to enter the United States illegally. One case from that period had concluded that by landing at Gitmo, Haitians did not obtain federal rights that might preclude their return. This suggested that the federal courts probably wouldn't consider Gitmo as falling within their habeas jurisdiction, which had in any event been understood to run only within the territorial United States or to American citizens abroad.
Civil liberties lawyers selected several enemy combatants at Guantanamo Bay to test the legality and conditions of detention through a writ of habeas corpus before a federal judge. They lost before a federal district judge in Washington, D.C., and a unanimous panel of the court of appeals upheld the decision. A federal appeals court in California, however, decided that Guantanamo Bay should be considered part of the territory of the United States, ignoring the fact that Guantanamo's lease, though perpetual, states that the base remains within Cuba's sovereignty. These cases moved forward to the Supreme Court to be decided along with Padilla and Hamdi.
The civil libertarians pushing the Padilla and Hamdi cases fervently believe that the courts need to check the executive branch and Congress to protect individual rights, especially in matters of war when the chances of abuse of executive power might be high. Their position is that the President cannot detain American al Qaeda members other than through the criminal justice system. Columbia law professor Louis Henkin, the nation's leading international law scholar, and Harold Koh, dean of the Yale Law School, filed a brief declaring: "The indefinite executive detention of U.S. citizen Jose Padilla on United States soil offends the rule of law and violates our constitutional traditions."20 Their belief was that presidential policy should remain exactly as it was before 9/11. "The existence of war or other armed conflict does not alter the fundamental structure of the Constitution or the constraints it imposes on executive power," Henkin and Koh wrote. "The U.S. Constitution contains no wartime or emergency exception to the scope of the President's powers. Indeed, the word 'war' appears nowhere in Article II of the Constitution."21
They are mistaken. The taking of prisoners has been a basic feature of war throughout human history, and the United States has captured prisoners in every major war it has fought.22 "Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces," the Supreme Court observed during World War II, due to "universal agreement and practice."23 We captured hundreds of thousands of prisoners in World War II and thousands in the Korean, Vietnam, and Persian Gulf wars, both lawful and unlawful combatants (those who obeyed the laws of war and those who did not). How we deal with enemy detainees affects other aspects of the war, such as morale, intelligence gathering, and the treatment of American POWs. Resources spent on detention reduce those available for other war needs. Throughout American history, control of prisoners captured in war has rested with military commanders, and ultimately the President. This power is implicitly part of the Constitution's grant of the commander-in-chief power to the executive branch, hardly an aggrandizing Bush power grab, as some like to claim. While Congress has the power to create the military and establish its rules of discipline, it has never sought to dictate a POW policy at odds with the President's.
There is no rule in law, or in history, that American citizens are constitutionally exempt from war. In the Civil War Confederate soldiers were all American citizens; when they were captured, they were held by the military, not the civilian courts. The Constitution has been consistently interpreted to permit our armed forces to detain American citizens as well as aliens fighting on behalf of our enemies. It is well-settled that the President, as commander in chief, has the power to determine how to defeat the enemy. This includes who to detain and how to detain them.24<
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Should a new President or Congress create a different rule for Americans who are captured fighting for al Qaeda? Some civil liberties lawyers want American citizens to be immune from military detention, even if they fight against us. Nothing in American history supports such a contention. Before 9/11, two cases, one from the Civil War, one from World War II, had reached the Supreme Court involving Americans captured while fighting against their nation. Both hold that Americans who join our enemies have no greater right to be free from detention when captured than alien enemy combatants.
In Ex Parte Milligan, Lamdin Milligan, a citizen of the Union and a resident of Indiana, was arrested on October 4, 1865, by the military commander for Indiana.25 According to Union military authorities, Milligan had joined a secret society known as the Order of American Knights to overthrow the government. Apparently Milligan's group planned to seize munitions stored at Army arsenals, liberate Confederate prisoners, kidnap the governor, and communicate with the enemy. He was tried by a military commission on October 21, and sentenced to hang. Nine days before the sentence was to be carried out, Milligan filed for a writ of habeas corpus, claiming that the military had no jurisdiction over him.
The Supreme Court granted the writ, releasing Milligan on two grounds. Milligan had been apprehended well away from the front, had never communicated with the enemy, and was only a partisan of the Confederate cause.26 The Court concluded that Milligan "was not engaged in illegal acts of hostility against the government." Milligan, in other words, was not an enemy combatant; he was only a Confederate sympathizer. The Court also observed that Milligan was captured behind Union lines, not on the battlefield, where "the courts are open and their process unobstructed."27
