The Perils of Judicial Restraint

If the Supreme Court won’t intervene on “enemy combatant” cases, Congress must.

Almost four years ago, Jose Padilla was seized by the Bush administration as an “enemy combatant” upon his arrival at O’Hare Airport. He had arrived in civilian clothes and without any dangerous weapons. Despite his American citizenship, he was held for more than three years in a military brig, without any chance to challenge his detention before a military or civilian tribunal. Attorney General John Ashcroft took to the television to charge him with plotting to attack an American city with a “dirty bomb.” The government has long since abandoned this charge, but continued to hold Padilla in military custody—transferring him to the civilian courts last November in an effort to avoid review of its remarkable conduct by the Supreme Court.

This gambit has now proved successful. While four justices must vote to hear a case, this week only three proved willing to consider Padilla’s petition challenging his designation as an enemy combatant and his years of detention without a hearing. In an opinion by Justice Anthony Kennedy, three others recognized that the case raised “fundamental issues,” but refused to reassure Americans that the courts would safeguard them against arbitrary imprisonment by the commander in chief. Now that Padilla will be tried in Florida on unrelated criminal charges, these swing justices refuse to comment on his three years of imprisonment, even though the government reserves the right to seize him again if it loses the criminal case it has so belatedly begun.

The court was in a tough position. It is already on a collision course with the president in the Guantanamo case, and so was understandably reluctant to take him on in Padilla v. Hanft as well. Nevertheless, Justice Kennedy’s appeals to “pruden[ce]” are profoundly misguided.

There will be another successful attack, and the next time around, the president—whoever he or she may be—will be in a position to use Padilla as a precedent to sweep hundreds or thousands of American citizens into military detention camps. By refusing to hear this case, the court allowed the Court of Appeals for the 4th Circuit to have the last word, and these judges unanimously upheld the president’s authority to seize an unarmed American at O’Hare Airport. Worse yet, the court’s infamous Korematsu decision, upholding the mass detention of Japanese Americans during World War II, remains on the books. While it might seem prudent for the court to evade a confrontation with the president in the short-term, its evasive maneuvers will yield big trouble over the longer term.

The nation is slowly recovering from the trauma of Sept. 11 and a strong Supreme Court decision reining in the president would have gained strong support right now. But the next time a citizen is thrown into a military brig, the court may be obliged to confront an aggressive president demanding deference in the immediate aftermath of a devastating attack.

According to the Washington Post, the American military has “devised its first-ever war plans for guarding against and responding to terrorist attacks in the United States, envisioning 15 potential crisis scenarios and anticipating several simultaneous strikes around the country.” When asked about the legal basis for such military intervention,

Pentagon authorities have told Congress they see no need to change the law. According to military lawyers here, the dispatch of ground troops would most likely be justified on the basis of the president’s authority under Article 2 of the Constitution to serve as commander in chief and protect the nation. “That would be the place we would start from” in making the legal case, said Col. John Gereski, a senior [military] lawyer. But Gereski also said he knew of no court test of this legal argument …

After months or years of presidential martial law, perhaps a future Supreme Court will intervene to rein in such excesses, perhaps not. But since the present court has chosen to duck the issue at a moment of relative calm, can it really be expected to show more fortitude in defense of freedom at a time of grave panic?

Now that the court has left us in limbo, it is up to Congress to think the unthinkable and define the terms of an “emergency constitution” that will govern the use of presidential power in the aftermath of the next terrorist attack.

In speaking of an emergency constitution, I don’t mean to be taken too literally. Nothing I propose will require formal constitutional amendment. The emergency constitution can be enacted by Congress as a framework statute governing responses to terrorist attacks. But this won’t happen unless we can conduct a constitutional conversation in the spirit of our 18th-century Founders.

First and foremost, the emergency constitution should impose strict limits on unilateral presidential power. Presidents should not be authorized to declare an emergency on their own authority, except for a week or two while Congress is considering the matter. Emergency powers should then lapse unless a majority of both Houses vote to continue them—but even this vote would be valid for only two months. The president must then return to Congress for reauthorization, and this time a supermajority of 60 percent should be required; after two more months, the majority should be set at 70 percent; and then 80 percent for every subsequent two-month extension. Except for the worst terrorist onslaughts, this “supermajoritarian escalator” will terminate the use of emergency powers within a relatively short period.

Defining the scope of emergency power is a serious and sensitive business. But at its core it involves the short-term detention of suspected terrorists to prevent a second strike. Congress must make it clear that the unconscionable treatment of Padilla last time does not create a precedent for massive and endless detentions the next time around. Nobody should be detained for more than 45 days, and then only on reasonable suspicion. Once the 45 days have lapsed, the government must satisfy the higher evidentiary standards that apply in ordinary criminal prosecutions. Even during the period of preventive detention, judges should have the power to intervene to protect against torture and other abuses.

In offering my proposals, I’m not building from the ground up. I’m seeking to develop ideas and practices that are already in common use. As the Katrina disaster emphasizes, presidents and governors regularly respond to natural disasters by declaring temporary states of emergency and—though this is less familiar—American presidents regularly declare emergencies in response to foreign crises and terrorist threats. Congress’ aim should be to develop these well-established practices into a credible bulwark against the presidentialist war dynamic that threatens to sweep away our longstanding system of checks and balances. In the aftermath of catastrophe, we shouldn’t turn on the television to see the president pledging himself to a further escalation of the “war on terror,” one that would sweep thousands into military camps. If that terrible day comes, they should hear a different message:

My fellow Americans, as we grieve together at our terrible loss, you should know that your government will not be intimidated by this terrorist outrage. This is no time for business as usual, but for urgent action. I am asking Congress to declare a temporary state of emergency that will enable us to take aggressive measures to prevent a second strike, and seek a speedy return to a normal life, with all our rights and freedoms intact.

We may be lucky: Perhaps there will be no repetition of Sept. 11. Or when the next strike occurs, perhaps the sitting president will be a heroic defender of civil liberties and refuse to succumb to the political dynamics of fear and repression. But things might turn out worse the next time. ­Perhaps the sitting president will combine the simplistic beliefs of George W. Bush, the rhetorical skills of Ronald Reagan, the political wiles of Lyndon Johnson, and the sheer ruthlessness of Richard Nixon into a single toxic bundle.

No constitutional design can guarantee against the very worst case, and no constitutional design is needed for the best of all possible worlds. But there is plenty of room in the middle, and this is where human beings generally live out their lives. This is where the emergency constitution can make a big difference.

We are in a race against time. It takes time to confront the grim constitutional future that lies ahead; and yet more time to separate good proposals from bad ones; and yet more time to engage in a broad-based public discussion; and more time still for farsighted politicians—if there are any—to enact an emergency constitutional framework into law. During all this time, terrorists will not be passive. Each major attack will breed further escalations of military force, police surveillance, and repressive legislation. The cycle of terror, fear, and repression may spin out of control long before a political consensus has formed behind a constitution for an emergency regime.

Only one thing is clear: After Padilla, it would be folly to rely on the Supreme Court to save us from the presidentialist war dynamic. This court has already been weakened by the recent appointments; while Justice Sandra Day O’Connor famously warned against giving the president a “blank check” in the war on terror, neither Chief Justice John Roberts nor Justice Samuel Alito voted to grant jurisdiction to impose sharp limits on presidential power at this propitious moment. And the court’s resolve may be weakened further if more vacancies occur before 2009.

There is no disguising the seriousness of our current situation, yet we have no real choice but to confront the dangers ahead and begin a sustained conversation that may lead to serious action by the end of the decade. Since the court has declined to begin that conversation, Congress must take the lead.