Commentary

The Moral Equivalent of Law (continued)

By Deborah Pearlstein
Director, US Law and Security Program,
Human Rights First

...continued

The Law Speaks

Cicero - great statesman and workaday attorney of the Roman Republic - first uttered the phrase "laws fall silent in time of war" in closing statements in a basic criminal case. Defending his client against a charge of murder, Cicero maintained that his client had acted in self-defense; while striking another person would usually be murder under the law, that law is silent when arms are raised. It was a simple, standard defense. It may be lost to history how Cicero's self-defense oration came to stand for the far broader idea that there is no law in wartime. Whatever the story, in its modern use to describe the relationship of executive and judicial power, "inter arma silent leges" is false.

The good news for the Supreme Court is that the complex question whether our struggle against terrorism is indeed a "war"- a term political life has made all but meaningless - is not at stake in the cases now before it. The only question for the Court is not whether we are at war, but what if any law - domestic or international - protects the individual rights of Citizens Padilla and Hamdi.

There are at least three concurrent bodies of law that afford rights to Yaser Hamdi and Jose Padilla (who, for all any of us knows for sure, may be completely innocent.) First, the U.S. Constitution and the laws of the United States as passed by Congress apply both to Padilla, arrested here, and Hamdi, arrested abroad. For Padilla, that principle is past question. For Hamdi, the Supreme Court decided the issue a half-century ago using language - in all respects the law of the land - that is unequivocal:

[W]e reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.

The Constitution provides, among other things, the right to a speedy trial, the right to confront witnesses against us, the right to an attorney, and anytime the government seeks to deprive a citizen of liberty, the right to due process of law - an idea that includes at its core an entitlement to notice of the reasons why one is being held, and an opportunity to be heard by some independent authority on that cause. To read the Commander-in-Chief Clause as giving the President the authority to suspend all of these rights at his discretion would make the rest of the Constitution pleasant dicta.

The second source of law is "international humanitarian law," which the administration calls the law of war. It gives rights to anyone - civilian, lawful or unlawful combatant - caught up in the course of armed conflict. The law of war is codified in the Geneva Conventions, a set of treaties drafted just after World War II, and ratified by the United States. Under these laws, if anyone is seized in the course of "armed conflict," a term that the Conventions limit and define, they may be held by the military for the duration of that conflict only if they are afforded certain protections. In addition to protecting alleged combatants (including our own troops captured abroad) against torture and coercive interrogation, the Geneva Conventions make clear that every alleged combatant must be treated as a prisoner of war (and afforded all of those protections) unless and until a "competent tribunal" decides otherwise. The United States has officially observed these Convention protections in every conflict in which it has engaged since World War II - including for the Viet Cong, and in the first Gulf War in 1991. Yet the administration has refused to afford them to Hamdi or even Padilla. There is no basis in law for the United States to assert the benefits of the law of war without also accepting its burdens.

The third relevant set of laws is international human rights law - embodied most simply by the International Convention for Civil and Political Rights, which the United States ratified a decade ago. This law recognizes the right of all individuals to be free from arbitrary detention, and the right to a fair and public hearing by a competent, independent and impartial tribunal to ensure that detention is lawful. None of the briefs the administration has filed in these cases has acknowledged the existence of this law, which, under the Supremacy Clause of the Constitution, is the law of the land.

All of these laws give Hamdi and Padilla rights that the executive branch has denied them. Even where U.S. constitutional law and the law of war conflict - as they may in the Hamdi case - the law of war applies to U.S. citizens to trump the rights the Constitution only when Congress expressly authorizes it. It is for this reason - because Congress had passed a law - that the Supreme Court upheld in the Quirin case the trial by military tribunal of Nazi saboteurs captured in the United States. And the necessity of congressional action is also at the heart of the Supreme Court's most important wartime case, Youngstown Sheet & Tube v. Sawyer. There, the Court rejected President Truman's claims of inherent domestic authority in wartime and held unconstitutional the President's summary seizure of the steel mills. The President's powers are not fixed, Justice Jackson explained in that case, but rather depend "upon their disjunction or conjunction with those of Congress." When Congress has spoken against the President's action - as it has here, in establishing that the President can only detain U.S. citizens under the express authority of an act of Congress - the President's power is at its minimum. Here, Congress has not come close to authorizing the President to detain U.S. citizens outside any legal protection, as he does now. For Padilla and Hamdi, the Constitution thus begins and ends the question of law before the Court.

* * * * *

There is no question - and the Court faces none - that terrorists like Al Qaeda pose a threat to U.S. citizens and interests. In contrast, there may be a question about whether there should be a new category created in law - one akin to international criminal conspiracy - that would better prevent and punish terrorism than the existing domestic law or international law of war. There may also be a question as to whether declaring an executive "war" against Al Qaeda, as one nation to another, helps the cause of terrorism more than it hurts. (Osama bin Laden is now risen to the status of sovereign in a war being waged against a tactic - terrorism - as opposed to being treated, as he would were we at "peace," as the deviant criminal that he surely is.) And there are enormously important questions about whether our war stance has made another September 11 any less likely than it was on September 10.

These are important questions indeed. But these are questions for policy makers, not for courts. In the cases now before the Court, the law must speak. War is silent.

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Deborah Pearlstein is Director of the U.S. Law and Security Program at Human Rights First (formerly the Lawyers Committee for Human Rights).