Academic journal article Suffolk University Law Review

Ab(ju)dication: How Procedure Defeats Civil Liberties in the "War on Terror"

Academic journal article Suffolk University Law Review

Ab(ju)dication: How Procedure Defeats Civil Liberties in the "War on Terror"

Article excerpt

Terrorism poses many kinds of challenges. One of the most wrenching is the question of how far we are willing to go in our quest for security. Will we sacrifice our ideals? What should we accept as the moral, constitutional, and international limitations on practices like detention, interrogation, and mass surveillance?

An equally compelling question under our constitutional structure is who will make these society-defining decisions. What should be the relative involvement of Congress, the President, and the courts?

In a series of historic cases, the Supreme Court undertook providing a check against antiterrorism detention policies designed by the executive branch to avoid judicial oversight. Many of these cases involved non-U.S. citizens held at the Guantanamo Bay detention camp. (1) The petitioner in Hamdi v. Rumsfeld (2) was a U.S. citizen detained within the United States. (3) In the course of the decision, finding that Yaser Hamdi had a right to due process in connection with his detention, Justice Sandra Day O'Connor observed:

   In so holding, we necessarily reject the Governments assertion that
   separation of powers principles mandate a heavily circumscribed
   role for the courts in such circumstances.... Whatever power the
   United States Constitution envisions for the Executive in its
   exchanges with other nations or with enemy organizations in times
   of conflict, it most assuredly envisions a role for all three
   branches when individual liberties are at stake. (4)

Even a state of war, O'Connor said, would not be a "blank check for the President when it comes to the rights of the Nation's citizens." (5)

While the cases involving Guantanamo detainees did not declare that those detainees enjoyed all the constitutional rights of U.S. citizens, the Court did allow the detainees to bring habeas corpus claims in federal court to address issues about their detention. (6)

By way of contrast, in the many other areas where the "war on terror" has generated deprivations of life, liberty, and privacy, the Supreme Court and lower federal courts have utterly failed to provide a much needed check on governmental excesses, including practices like extraordinary rendition, (7) the use of "enhanced interrogation techniques," (8) targeted killings, (9) and dragnet surveillance policies. (10) This stonewalling has prevailed even when U.S. citizens have been involved. The courts have hidden behind procedure on a number of grounds, including standing, (11) technical pleading rules, (12) the state secrets privilege, (13) and limitations on the Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (14) cause of action, (15) in refusing to hear the merits of challenges based on the Constitution, federal statutes, and international law.

These opinions are an embarrassment to the legal profession. Incalculable judicial resources are invested in providing elaborate, often arcane, explanations for why the court in question should not consider the merits of each case. Some courts offer multiple procedural defenses in multi-section opinions; others dispose of a case on one procedural ground while noting that other possible excuses remain in reserve. These excruciating exercises in procedure follow excruciating recitations of the plaintiff's allegations: terrible accounts of the U.S. government's involvement in kidnapping, torture, unconstitutional surveillance, targeted killings beyond any battlefield, and other secret operations.

The bottom line in case after case is that the courts have managed to absent themselves from even considering whether many highly questionable governmental policies and practices are illegal or unconstitutional. It is remarkable, for example, that although quite a few men have gone to U.S. courts with substantiated claims that they were subjected to extraordinary rendition and torture involving American officials, not a single one of these plaintiffs has received a hearing on the merits of his claim. …

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