Judicial Power Seminar
October 24, 2002-First Draft
Clark Cunningham
Comparative Analysis of the Executive Branch’s
Actions in the Post September 11th Era
The United States of America is the most powerful and admired democratic government
in the world. This status, however, was not achieved easily. The citizens have endured wars of all
types and endured many treacherous situations but never has the country seen anything similar to
the current state of affairs. America is neither in war nor peacetime in this post September 11th
era. This phenomenon has given rise to many legal questions that will need to be addressed by
the judicial system.
The executive branch has taken measures to preserve the security of our nation such as
removing the Taliban forces from Afghanistan, implementing additional security measures in the
airline industry and detaining terrorist suspects. The government has detained people for
immigration violations, specific involvement with the attacks on the World Trade Center and
Pentagon and people who may have information needed to prevent any future attacks on our
nation. This preventive detention tool is our focal point because the government has so easily
abandoned the most fundamental right of freedom that Americans have strived so hard to protect.
After the wake of the attacks, the government began to round up people that can be
classified into three categories: immigration violators, material witnesses and enemy combatants.
1
Persons being held in each of these classes have sought judicial review of what they find to be
unconstitutional and therefore unlawful detainment. Each of these classifications has their own
1
Adam Liptak, Neil A. Lewis, Benjamin Weiser, After Sept. 11, a Legal Battle on The Limits of
Civil Liberty, N.Y. Times, Aug. 4, 2002.
different yet valid arguments; nonetheless, the enemy combatant poses the most unique issue for
the courts. This “enemy combatant” label sprout from the Bush administration after the terrorist
attacks and is found nowhere else in American history.
The Constitution enables the President to execute the laws of the nation and also grants
additional powers during wartime. The President’s power is at its strongest when he has the
support of Congress, whether implied or expressed. 2 Presently, the Bush administration is acting
with some congressional authority. In response to the attacks on September 11th, Congress
enacted a Joint Resolution authorizing the executive branch to take actions to catch the terrorists
and prevent future attacks. 3 Nonetheless, like most statutes, there are always multiple
interpretations. These interpretations of what power the executive branch truly has with regard to
preventive detention will be key to determining whether or not detainees are being held
unlawfully.
There are, of course, valid arguments on both sides of the legal battle. At this point in
time, a proper analysis between the opposing views and a historical analysis is necessary to
evaluate what the Supreme Court will have as a guide for determining the proper resolution to
some of these challenging issues. In the history of the United States there have been several
similar incidents that will assist this analysis such as the Civil War, World War I and World War
II, however, it must be noted that each of these were during wartime and we are currently not
involved in the typical war. The incidents of September 11th left our nation with hidden enemies
that are not easily identified and without another nation as a target, the government has no one to
declare war against. The “War on Terrorism” encompasses most countries.
2
3
2
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1953).
Authorization for the Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (2001).
India and the United States of America are very similar in that India was under English
rule and adopted much of their legal system and theory from them just as the United States did.
Further, India is a fairly young democratic nation in which its founders studied, to a great extent,
the American constitution and court decisions when framing their own constitution. Due to the
similarities in the two nations and the fact that India has experienced similar circumstances with
preventive detention, their legal history is invaluable. The Indian Constitution specifically
allows for preventive detention during emergencies.4 This process has been criticized by some,
in short, “[P] reventive detention is a necessary evil but essentially an evil”5 yet it still remains in
their constitution and is upheld by their highest courts.
I.
American History of Judicial Review of Executive Actions
Chief Justice Rehnquist wrote a book that pre-dates the terrorist attacks; however, it
outlines the history of the United States with respect to civil liberties being overlooked during
wartime.6 The book is instrumental in understanding what the judiciary will consider when and if
the Supreme Court hears any of the preventive detention cases. A chronological analysis such as
Chief Justice Rehnquist used is best suited for this comparative breakdown.
Dating back to the late 1800s, the executive branch’s ability to suspend the writ of habeas
corpus has been questioned. Lincoln suspended the writ of habeas corpus during the revolt of the
4
Indian Const., art. 22(7).
State of Punjab v. Jagdev Singh, AIR 1984 SC 444
6
William H. Rehnquist, All the Laws But One: Civil Liberties In Wartime, (Vintage Books
1998).
5
3
late 1800s and Justice Taney attempted to contest his authority to do this.7 Lincoln was acting
under his constitutional power as set out in Article I, Section 9, Clause 2 which states “The
Privilege of Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it”8 Taney opined in the Merryman decision that this
clause only refers to congressional authority and that the president is not granted power under it
because the clause is found under Article I which is generally reserved for congressional
authority. 9 This extremely valid textual interpretation of the Constitution is completely
overlooked and barely discussed in similar cases heard at later dates. (Taney’s role in the Dred
Scott decision may have been the cause of people not respecting his opinions) Lincoln ignored
Taney’s decision and Congress eventually suspended the writ thus making the argument mute for
the moment.
The judicial branch got their chance again a few years later when they heard the case of
Ex Parte Milligan. The petitioner in this case, a civilian, was tried and sentenced to death by a
military tribunal. Once again the court did not agree with the executive branch’s opinion on the
authority they enjoyed. The decision does state that Congress may have the authority to enlist the
military to conduct trials when regular civil courts are not in session. 10 This was not the situation
in the Milligan case. Further, the court “rejected the argument that in time of war the commander
of an armed force had the authority to suspend civil rights and remedies”11 but did assert that the
writ of habeas corpus could be suspended. Oddly however is that, the suspension of the writ of
7
Ex parte Merryman, 17 F. Cas. 144, 1861 U.S. App. LEXIS 380, 9 Am. Law Reg. 524, 1 Taney
246.
8
William H. Rehnquist, All the Laws But One: Civil Liberties In Wartime, (Vintage Books
1998) at p.36.
9
Merryman, 1 Taney 246
10
Ex parte Milligan, 71 U.S. 2, 18 L.Ed. 281, 1866 U.S. LEXIS 861, 4 Wall 2.
11
Milligan, 4 Wall 2 at 130.
4
habeas corpus would in turn allow the government to successfully detain people unlawfully. This
is an unusual result because what civil right could be more important than the right to not be
illegally detained? The Milligan decision left us with the government being allowed to suspend
the writ of habeas corpus but not try civilians in a military court for unrelated crimes not related
to the military.
The aforementioned cases may hinder the Bush administration’s present efforts. Both of
the cases allowed for Congress to suspend the writ and initiate military tribunals and Congress
has not done this. The Joint Resolution that was enacted allows the commander in chief “to use
all necessary and appropriate force against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks on September 11, 2001”. 12 The
court may not interpret the act to enable the president to detain some of the people that they
have. Traditionally the court respects executive action in times of crisis but these two early cases
show us that when it is something so important, such as abandonment of civil liberties, that they
will not necessarily be silent. Strict scrutiny nay be required of the court.
The court’s view changed once the President was assassinated. John Wilkes Booth’s
accomplices, who were civilians, were tried and sentenced to death before military tribunals for
their participation in the assassination of President Lincoln. The court distinguished this decision
because they considered the President to be in his role as Commander in Chief and thus it was an
attack on a military official. 13The attack on the Pentagon and attempted attack on the White
House on September 11th may be seen as attacks on military targets. This may be a pivotal issue
for the government to make sure the court does not overlook; however, if attacks on
12
13
5
Authorization for the Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (2001).
Ex parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868)(No. 9,899).
governmental buildings automatically incite the military, then the question as to why Timothy
McVeigh was tried in a regular civil trial court must be addressed.
After the turn of the century, America once again found itself at war. Congress enacted
an Espionage Act that prohibited anyone from printing material disparaging the war efforts.
Charles T. Schenck was convicted of distributing leaflets that could easily incite rebellion to the
draft and on appeal:
The Supreme Court, in a unanimous opinion authored by Justice
Oliver Wendell Holmes, upheld his conviction. It said that ‘When
a nation is at war many things which might be said in time of peace
are such a hindrance to its efforts that their utterance will not be
endured so long as men fight… No court could regard them as
protected by any constitutional right’14
The judiciary did not, as it will in the near future, have as much interpretation to do of the
congressional act. The Espionage Act was very specific whereas the current Joint Resolution that
the Bush administration is acting under is a very broad enabling act. Congress’s intent was clear
during World War I and the court had little choice but to uphold the conviction of anyone
violating the act.
Civil liberties are once again discarded when Japan attacks Pearl Harbor forcing the
United States to enter into what became known as World War II. The precedence that comes
from this era provides sound legal basis for the government’s arguments when justifying their
current methods becomes necessary. The Supreme Court completely backed the actions of the
President without regard to how disturbing to civil liberties they were; however, there was a
declaration of war and enemies that could be labeled to some extent.
14
William H. Rehnquist, All the Laws But One: Civil Liberties In Wartime, (Vintage Books
1998) at p.174.
6
The Quirin decision granted the president an enormous amount of power to determine
who the enemies were and bring them to justice with almost no checks from any other branch.
The concluding paragraph states that the decision is specific to these facts alone and that curbing
their Fifth and Sixth amendment rights was justified because their crime was a crime of war and
not under the normal criminal laws.15 If Quirin and his cohorts had been successful they would
have bombed businesses that would have hindered the war effort. Their situation is very similar
to those guilty of the September 11th attacks, for instance, they had all lived in the United States,
they wore civilian clothing and their target was not necessarily military in nature. This decision
validates the detention of suspected terrorists at military bases.
The next vital case favoring the government’s preventive detention stance was decided
two years later where the court held that the curfews imposed on Japanese Americans was
lawful. At this time, the government was imposing and even requiring Japanese Americans to
move from their homes in California to a more inland location. The government’s fear of an
entire race of people was enough for the court to support the actions of the government. While
recognizing the extreme imposition this would impose they held that “hardships are part of war”.
16
It is important to note that the courts did not require any evidence from the government. This
will assist the government’s contention that they can hold the suspected terrorists without
divulging why they are being held. Essentially the national security explanation would suffice
under the Korematsu decision. The Japanese Internment cases are frowned upon now but that
may not be relevant since it is hard to determine what a court should have done when not
personally living in fear.
15
16
7
Ex parte Quirin, 317 U.S. 1, 87 L.Ed. 3, 63 S.Ct.1 (1942).
Korematsu v. United States, 323 U.S. 214 (1944).
To further the government’s position, the court defined an alien enemy/belligerent when
it heard the case In Re Territo in 1946. Currently, the government is holding Jose Padilla under
the guise that he is an enemy combatant. There is no case law that uses this exact phrase;
however, there are cases that define an enemy as “[i] n war, all residents of enemy country are
enemies”17 and further, the Quirin court stated that “[c] itizens who associate themselves with
the military arm of the enemy government, and with its aid, guidance and direction enter this
country bent, on hostile acts are enemy belligerents within the meaning of the Hague Convention
and the law of war”. 18Since there has been no formal declaration of war, the Hague Convention
is not applicable, nonetheless, the similarities cannot be denied.
On May 8, 2002 at the O’Hare Airport, Jose Padilla was arrested pursuant to a court order
from the Southern District of New York as a material witness for grand jury hearings. The
material witness detainees are held, without any intention of being charged with a crime, for the
purpose of testifying in the grand jury proceedings. At some later point, the President, acting as
Commander in Chief, determined, from information received by a high level al Qaida member,
that Jose Padilla was an enemy combatant and ordered him to be turned over to the Department
of Defense. 19 This command was respected and Padilla was transferred to a military naval base
in South Carolina. The support for the President’s determination is found in what has been
labeled as the Mobbs Declaration. Padilla’s detention is based on protecting national security,
specifically, to prevent Padilla from executing an alleged plan to detonate a ‘dirty bomb’.20
In Lamar’s Executor v. Browne, 92 U.S. 187; 23 L. Ed. 650; 1875 U.S. LEXIS 1748; 2
Otto 187 (1875).
18
Ex parte Quirin
19
Motion To Dismiss Newman’s Petition at 2, Padilla v. Bush et al., (U.S. Dist. S.D.N.Y.)(No.
02 Civ. 4445)(2002).
20
Id.
17
8
Upon Jose Padilla’s arrest in Chicago, he was assigned an attorney, Donna R. Newman.
Ms. Newman maintained a normal attorney/client relationship with Padilla such as visitations
with him and filing of motions with the court. Newman was attempting to have him released on
the basis that “his detention was illegal and contrary to his constitutional rights”21, however, once
Padilla was moved to the navy base, this argument became mute while new ones arose.
Ms. Newman, amici and the government have all filed motions, responses and briefs in
support of their stances regarding Padilla’s detention at the military base. These documents have
all been filed in the United States District Court for the Southern District of New York. This is
the court that had jurisdiction to order the arrest of Padilla originally; however, once Padilla was
moved to South Carolina it became questionable as to whether it was the proper venue since he
is not physically within the district anymore. The government relies heavily on the decision of
the 4th Circuit in the Hamdi decision when they maintain that they are lawfully holding Padilla.22
The district court has not made a decision; however, if it decides in favor of Padilla, the issue
will be ripe for the Supreme Court.
II.
India History of Judicial Review of Executive Actions
There are several periods in India history that will be of some guidance for the United
States Supreme Court in their upcoming decisions. Unlike in the United States, the drafters of the
21
Amended Petition For Writ of Habeas Corpus at 21, Padilla v. Bush et al., (U.S. Dist.
S.D.N.Y.)(No. 02 Civ. 4445)(2002).
22
Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002).
9
Indian Constitution foresaw the need for a preventive detention provision.23 The Indian
Constitution provides the means for the government, when necessary, to enact laws empowering
the government to detain people without charging them. This clause presumably eliminates the
need for litigation unlike the wait and see system found in America.
Further the Indian Constitution contains Article 359 that allows for the suspension of the
fundamental rights found in Article 19, however, the clause specifically excludes the authority
for the President to suspend the rights under Articles 20 and 21. 24 Essentially the article “does
not purport expressly to suspend any of the fundamental rights. What the Presidential Order
purports to do by virtue of the power conferred on the President by Article 359(1) is to bar the
remedy of the citizens to move any court for the enforcement of the specified rights.”25
Removal of the citizens’ remedies in a court of law is quite similar to a denial of a writ of
habeas corpus in the American system. The Indian Constitution states much clearer the
presidential authority while the American courts have had to interpret this authority into the
United States Constitution. Regardless of the clear intent of the drafters of the Indian
Constitution, there appear to be more actions in India criticized for fundamental rights violations
than in America.
Dividing India into historical events such as peacetime, emergency and wartime is logical
because of the format of the Indian Constitution. In each of these political regimes, the court’s
decision will be grounded on different clauses and statutes because the Constitution and many of
its Articles are classified into one of the three categories. Accordingly, it will be insightful to
look at the rules related to emergency and wartime statuses. The decision in Burmah Oil
23
Indian Const., Art. 22 (7)
B.L. Hansaria, A. Pasayat, Right To Life and Liberty Under The Constitution, Emergency and
Article 21, Chapter XIII (Bombay)(1993).
25
Supra. p.138
24
10
Company shows the courts willingness to suspend fundamental rights during wartime.26 Further,
[t] he curbing of personal rights becomes a necessity and this necessity was characterised as a
‘supra constitutional’ principle” in the holding.27 The opinion appeared to be based on the notion
that “[w] hen the country is at war, ordinary law is inadequate”. If the United States Supreme
Court used India’s example, it is clear that they will side with the government even after
considering the lack of a formal declaration of war against a nation.
On the other hand, in 1982, the bench held that Article 4 of the International Covenant on
Civil and Political Rights does not “permit invocation…by the Armed Forces to keep the
arrested person in custody for the purpose of interrogation or to be fully satisfied whether the
concerned person was really involved in the matter which led to his arrest”28. The Bush
Administration has specifically stated that they need to keep the detainees so that they may have
the opportunity to interrogate them without interference from their counsel or the outside
world.29 Clearly, the government would lose their argument under this holding. The Bench went
further to discuss finding the proper balance between protecting your country and upholding
personal liberty in paragraph 7-A of the opinion.30
There are three primary preventive detention acts that will be concentrated on in the India
analysis: Preventive Detention Act of 1950, Terrorist and Disruptive Activities Act and the
Jammu and Kashmir Public Safety Act. While there are “a plethora of preventive detention laws;
the Preventive Detention Compendium published in 1966 (All India Reporter) for instance, lists
26
Burmah Oil Company v. Lord Advocate, 1965 A.C. 75.
B.L. Hansaria, A. Pasayat, Right To Life and Liberty Under The Constitution, Article 21 and
Human Rights, Chapter XI (Bombay)(1993) at p. 115.
28
Supra p. 120
29
Amended Petition For Writ Of Habeas Corpus at 31, Padilla v. Bush et al., (U.S. Dist.
S.D.N.Y.)(No. 02 Civ. 4445)(2002).
30
N.N. Chandan Devi v. Rishang Keishang, 1982 (1) G.L.R. 756.
27
11
85 current national and state laws under which a person may be placed in administrative
detention”, for simplistic sake, only the three aforementioned acts will be analyzed.31
The earliest of the acts was the Preventive Detention Act of 1950 (hereinafter “1950 act”)
that lead to the detention of A.K. Gopalan, a very powerful political figure at the time. He
challenged the statute arguing that it was unconstitutional; specifically that it violated a person’s
Right to Freedom and Personal Liberty found in Articles 19 and 21 of the Indian Constitution,
respectively. This was the first instance of the judicial branch interpreting these articles. The
Gopalan decision remained the leading constitutional interpretation on preventive detention and
the related constitutional provisions until 1978 when the court heard the Maneka Gandhi case. 32
In the Maneka Gandhi decision that court held that Article 22 of the Indian Constitution did not
stand alone, i.e. the exclusivity argument in Gopalan was no longer valid. 33 The result is that all
articles of the constitution must be consistent with one another. For instance, Article 22 will not
survive judicial scrutiny if the actions surrounding the detention are not constitutional with
respect to the other fundamental rights granted in the Indian Constitution.
Gopalan’s motion was dismissed because the Justices did not feel that Article 19’s right
to move freely was valid and that the state had followed procedure established by law as required
by Article 21 when detaining him. The court relied heavily on the opinion of the framers when
they were constructing the language in the Indian Constitution and, in turn, their evaluation of
the United States Constitution when deciding this case.34
31
India: Punitive use of preventive detention legislation in Jammu and Kashmir, Amnesty
International (May 2000) page 2, available at
http://web.amnesty.org/ai.nsf/Index/ASA200102000
32
Clark Cunningham, Judicial Power Coursebook at p. 48.
33
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597, 623.
34
A.K. Gopalan v. State, A.I.R. 1950 S.C. 27
12
Due to the widespread terrorist problems in India, they enacted a statute, the Terrorist and
Disruptive Activities Act (hereinafter “TADA”) that would seem to turn the table on the burden
of proof needed to convict a person. This act provides for a presumption of guilt and allows for
closed hearings. While the Bush administration would never be allowed to officially have a
presumption of guilt, statistically speaking most jurors make their decision after hearing the
opening statements.35 This theory means that jury decisions are made without any evidence
being presented. This statute was allowed to elapse in 1995 but has nonetheless been used many
years after that date.
“The law has been used by the Government of Jammu and Kashmir to arbitrarily detain
political activists in Jammu and Kashmir”. 36 The numbers of persons detained under this law is
staggering. Further, the basis of their detention is unsubstantiated according to Amnesty
International’s investigations and therefore violates Article 9(1) of the International Covenant on
Civil and Political Rights that states that no one shall be arbitrarily detained or deprived of their
liberty without the proper procedure established by law. There are detainees being arrested and
held for merely expressing their political views.37 The most astounding event occurred when “[I]
n November 1999 the detention of all the detainees was extended to two years from the date of
arrest”. 38 This sweeping extension of all detention orders, on its face, can be arbitrary and
therefore unconstitutional.
In addition to the questionable detention of these people, they are being held
incommunicado like Padilla. Amnesty International fears that this procedure enables them to
Professor Sobelson’s Evidence Lecture, Fall 2001
India: Punitive use of preventive detention legislation in Jammu and Kashmir at p.1
37
Supra. p.7
38
Supra. p.8
35
36
13
torture and even kill detainees without any checks and balances.39 Further, court orders to release
some of the prisoners have simply been ignored by the government of Jammu and Kashmir.
These acts of power by the Jammu and Kashmir governments are to be feared and are simply not
rational in any democratic society.
The Jammu and Kashmir Public Safety Act (hereinafter “PSA”) allows for preventive
detention as well. It has been challenged on some of the same grounds as TADA. Amnesty
International describes the act as “the main law relating to preventive detention in Jammu and
Kashmir and permits administrative detention without trial for a period of up to one year if a
person is deemed likely to act in a way ‘prejudicial to the maintenance of public order’ or up to
two years if their actions are likely to be ‘prejudicial to the safety of the state’.” 40 Even though
this act allows for detention orders of up to two years, there are detainees that petition for judicial
review and their cases are never heard. The expiration date of the order is reached prior to their
court date. There are very few successful challenges to preventive detentions because of the
slowness and/o unwillingness of the court to hear the cases and the detainees not understanding
their rights.41 In rare situations, detainees received compensatory damages for their illegal
detention.42
The latest article written by Amnesty International related to Jammu and Kashmir
detentions is from June of 2001 which concluded that “[t] he arbitrary arrest and detention of
those peacefully voicing dissent is continuing in Jammu and Kashmir, India, with the Public
39
Supra. p.16, 17
India: Use of the Public Security Act in Jammu and Kashmir, Amnesty International (June 18,
2001), available at
http://web.amnesty.org/ai.nsf/Index/ASA200342001?OpenDocument&of=COUNTRIES\INDIA
41
India: Punitive use of preventive detention legislation in Jammu and Kashmir at p. 24
42
India: Punitive use of preventive detention legislation in Jammu and Kashmir at p. 25
40
14
Security Act (PSA) increasingly being used to punish those who criticise the government”.43
There have been developments of detainees being released but the act is still abused according to
the staff of Amnesty International.
Conclusion
The United States of America has had to deal with similar situations in which it now
faces. The enemy may have looked different and the war may have been fought different but
there is sufficient precedence for the Supreme Court of the United States to make a reasoned and
sound decision when it has to decide whether or not Padilla, and others similarly situated, should
be held as enemy combatants.
American history has shown time and time again that fundamental rights can and are setaside in times of emergency and war. In hindsight, a lot of Americans are in shock of what
people and the country may have done in these stressful situations, for instance, the Japanese
curfews. On the other hand, the citizens need to feel safe. Further, other democratic societies also
feel that preventive detention is a necessary albeit dangerous means to an end. India has shown
us how it can be constitutional in one instance and repugnant in the next.
It is odd; however, that we can fight for freedom and take it away with the same act. If
the government can arbitrarily arrest citizens, have the terrorist succeeded?
43
India: Use of the Public Security Act in Jammu and Kashmir
15