The Supreme Court Goes to War:
Hamdi, Padilla, and Rasul at 10

Ten years ago tomorrow, the U.S. Supreme Court handed down its first three decisions in post-September 11 terrorism cases: Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush. In one sense, it’s worth reflecting on the anniversary of the 2004 trilogy simply because of how significant the decisions were at the time they were handed down (to wit, very!). But, as I try to suggest in the post that follows, we need only look to the current state of national security law to see how far we’ve come in the ensuing decade. Indeed, today marks the end of a week that included court-ordered disclosure of the OLC drone memo, along with district court decisions that (1) held parts of the no-fly list regime to be unconstitutional; and (2) rejected a constitutional challenge to the use of FISA Amendments Act-based evidence in a criminal case. And this week has not been that unusual, in this regard.

For better or for worse (and my own view is mostly for the better), the federal courts today are far more willing and able to adjudicate sensitive disputes arising out of the armed conflict Congress authorized in September 2001–and out of counterterrorism policies more generally–than we might reasonably have predicted on the day before HamdiPadilla, and Rasul were handed down. A decade ago tomorrow, the Supreme Court went to war–and the judges won.

I.  The Road to the Trilogy

For a time, it looked like the Supreme Court might stay out of cases arising out of post-September 11 counterterrorism policies altogether. As I summarized in a 2009 article, the Court denied certiorari in over a dozen high-profile terrorism disputes that reached it in 2002 and 2003, including several that presented circuit splits or other issues that would ordinarily have been ripe for the Justices’ consideration. And the Court even denied certiorari in the first Guantánamo case to reach it–Coalition of Clergy v. Bush–before surprising many observers by voting to grant certiorari to review the D.C. Circuit’s decision in Rasul, which had held that the federal courts categorically lacked habeas jurisdiction over Guantánamo. Even though that lower-court ruling created no circuit split (at least, until after cert. was granted), and even though the government adamantly opposed certiorari, the Justices granted review in Rasul on November 10, 2003, and set it for argument on April 20, 2004.

Chronologically, the second of the three cases to reach the Court was Hamdi v. Rumsfeld, involving the first (ultimately of two) U.S. citizens to be held by the military without charges as an “enemy combatant.” In Hamdi’s case, the government had for a time argued that the entire dispute presented a non-justiciable political question–an argument that was rebuked by the district court and Fourth Circuit. But the Fourth Circuit nevertheless upheld Hamdi’s detention on the basis of a sole, unchallenged affidavit (the “Mobbs Declaration“), leading Hamdi to seek certiorari. And on January 9, the Court further surprised most observers by granting certiorari–again, over the government’s stringent objections.

Part of why the Court may have been impelled to grant certiorari in Hamdi was the Second Circuit’s decision three weeks earlier, in the other U.S. citizen “enemy combatant” case–that of Jose Padilla. In Padilla’s case, a divided panel of the Court of Appeals had distinguished the Fourth Circuit’s decision in Hamdi based on where Padilla was arrested (inside the United States, as opposed to in Afghanistan), and held that Padilla’s detention was prohibited by the Non-Detention Act, 18 U.S.C. § 4001(a). That ruling, on December 18, 2003, may very well have convinced the Justices to grant in Hamdi. What’s clear is that it also prompted the government to seek expedited review from the Supreme Court, and with Rasul and Hamdi already on the docket, the Court granted Padilla on February 20, setting it for argument just two months later alongside Hamdi, on the last argument day of the Term. And it was during the oral argument in Padilla that then-Deputy Solicitor General Clement, in response to a question from Justice Ginsburg, asserted that “our executive doesn’t” torture. That night, CBS’s 60 Minutes II first broke the Abu Ghraib story.

II.  The June 28 Rulings

We may never know what effect the 60 Minutes story had on the Justices–or on their votes in Hamdi and Padilla (Rasul had been argued the previous week, and so the Justices had already reached a tentative decision when Justice Ginsburg asked her question). But when the rulings came down two months later, the results were a fairly modest–but clear–rebuke to the U.S. government. In Hamdi, although a 5-4 majority upheld the government’s authority to detain as an “enemy combatant” a U.S. citizen captured in Afghanistan, only one Justice defended the sufficiency of the cursory process Hamdi had received in the lower courts. And although Justice O’Connor’s plurality opinion left plenty of the details up to the lower courts on remand, the government, rather than even trying to meet a higher evidentiary burden, agreed to release Hamdi.

Moreover, although Justice Breyer provided the key fifth vote in favor of the authority to detain Hamdi, he also joined in full Justice Stevens’s dissent in Padilla–where the majority ducked the merits of Padilla’s detention on a technicality, holding that Padilla should have filed in South Carolina, rather than New York. In addition to dissenting on the procedural point, Justice Stevens emphasized that the dissenters “believe that the Non-Detention Act prohibits–and the [AUMF] does not authorize–the protracted, incommunicado detention of American citizens arrested in the United States.” Along with Justice Breyer (who joined the dissent in Padilla) and Justice Scalia (whose dissent in Hamdi should have applied a fortiori to the merits of Padilla’s detention), that meant that, on the merits, there were at least five votes for Padilla.

Such tea-leaf-reading may help to explain why, when Padilla’s case came back to the Court, the Bush Administration mooted it by having Padilla indicted on criminal charges. More generally, perhaps the most obvious legacy of Hamdi and Padilla is their uniqueness; no U.S. citizens have been subjected to military detention under the AUMF since the June 28 trilogy, and the one non-citizen captured within the United States who was so held was already in military custody when the three decisions came down. In other words, the June 28 trilogy practically ended the detention of U.S. citizens, or non-citizens arrested within the United States, as “enemy combatants.” And even as applied to non-citizens overseas, although Hamdi remains the key precedent supporting the government’s continuing use of military force under the 13-year-old AUMF, its carefully circumscribed language has increasingly suggested judicially enforceable outer limits on the government’s power to use force thousands of miles and/or a decade removed from the post-9/11 battlefields of Afghanistan.

But the bombshell was Rasul. Writing for a 6-3 majority, Justice Stevens held that the federal courts do indeed have statutory jurisdiction over habeas petitions from Guantánamo detainees–opening the door to a flood of litigation from the detainees (and putting significant pressure on the government to improve the conditions at the detention facility, to institute at least some review procedures–the Combatant Status Review Tribunals–and to release those detainees whose cases it could not defend even before those bodies). On the day Rasul was decided, 597 men were still detained at Guantánamo; one year later, that figure was down to 518; by the end of June 2006, that number was down to 448, and it was under 270 by June 2008.

It’s true, of course, that the 2004 decisions in hindsight represented only relatively modest setbacks for the government. After all, the Bush Administration won on the key detention authority question in Hamdi; avoided a loss in Padilla; and only lost on statutory jurisdiction (which Congress subsequently, albeit unconstitutionally, repealed) in Rasul. But the real lesson from the June 28 trilogy was the Court’s unbridled assertion of judicial power–that these were disputes to be decided by the courts, first and foremost. Thus, it was the open effort of the Bush Administration to exclude the courts that, in the end, helped to provoke their involvement. And once they were involved, the prospect of judicial review had a profound impact on the conduct of the executive–not necessarily in judicial decisions, but in policy changes behind the scenes undertaken to avoid subsequent litigation. After all, if the government knows that its conduct will be subject to judicial oversight, it’s going to be a lot more careful and demanding about what it is doing. One can only imagine what would have happened if, in the June 28 trilogy, the Court had instead opted to remain on the sidelines.

III.  The Judicial Aftermath

As I wrote in a Columbia Law Review essay three years ago, the idea that the Supreme Court’s post-September 11 jurisprudence in counterterrorism cases has been focused on judicial power has only been reinforced by what’s happened since the June 28 trilogy. The Court’s taken a handful of additional major counterterrorism cases, but if one takes out cases in which it was the government seeking certiorari (IqbalHumanitarian Law Projectal-Kidd, and Clapper), and the al-Marri case (the third of three cases involving individuals detained as enemy combatants within the United States), the only cases the Justices have agreed to hear–HamdanBoumediene, and Kiyemba–involved specific threats to the role of the civilian federal courts. And as the proceedings in Kiyemba I and III make clear, once the threat to judicial power dissipated, the Justices were perfectly happy stepping aside. From the Supreme Court’s perspective, at least “So long as the power of the federal courts to act on the detainees’ claims was unthreatened, the merits did not require the Justices’ attention, and could be left to the political branches—or, failing that, the lower courts.” In the end, “one can hardly blame the Court if Congress and the executive branch failed to take heed.”

As a result, the Justices have stayed out of a wide range of disputes over controversial counterterrorism policies, from extraordinary rendition and warrantless wiretapping to the “merits” litigation coming out of Guantánamo. But whereas plenty of criticism has been directed at the Justices for their refusal to wade into (or back into) these disputes, including some from me, the larger–and perhaps more important–point is that these cases were heard by lower courts. Sometimes, the lower courts’ decisions reached debatable conclusions on the merits; sometimes, the lower courts ducked based upon debatable applications of justiciability doctrines or other procedural obstacles; sometimes, they actually got a case or two right. The real story, though, is the rise of judicial power in the lower courts: With only a handful of scattershot exceptions, the lower courts in the decade since the June 28 trilogy have handed down decisions in hundreds of civil and criminal lawsuits raising important questions about U.S. counterterrorism policies–including this week’s trio on the drone memo, the no-fly list, and the government’s use of FISA Amendments Act-based evidence in a criminal prosecution.

What’s more, an increasingly significant percentage of these cases involve classified information and other sensitive national security issues–topics on which judges have historically been argued to lack competence and constitutional authority. With every new decision in one of these cases, the lower federal courts have shown their abilities and capabilities–not necessarily to decide these cases correctly, but to decide these cases at all. And even in the context of the government’s controversial surveillance programs, one of the most widely endorsed proposals for introducing greater accountability is to increase the role of the federal courts–through the involvement of some kind of “special advocate” before the typically ex parte Foreign Intelligence Surveillance Court (FISC).

We will all debate, until time immemorial, the merits of these decisions. We may also continue to debate the merits of such an aggressive judicial role in this context. But what can no longer be disputed is the fundamental shift in mentality on the part of many (if not most) federal judges–a shift that may not have begun ten years ago tomorrow, but one that got a pretty strong push from the three decisions the Supreme Court handed down that day. Even if the Executive Branch ends up winning many, if not most, of these lawsuits, all that such a scorecard proves is that judicial review has had the exact effect the Founders intended–to better ensure that the government acts generally in accordance with the law. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).