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10.1177/0032329205280926POLITICS & SOCIETYCHRISTIANE WILKE

War v. Justice: Terrorism Cases, Enemy Combatants, and

Political Justice in U.S. Courts

CHRISTIANE WILKE

What mechanisms led to the intractable legal situation of “enemy combatants” detained by the U.S. government in Guantánamo Bay and elsewhere? And what does the role of the judiciary in the enemy combatants cases suggest about politi- cally contentious court cases in general? This article develops a two-stage theory of political justice that is based on the U.S. post-9/11 terrorism cases. It demonstrates mechanisms by which politically contentious cases turn into political justice. Politi- cal justice in these cases is mainly the result of violations of the separation of powers that are legitimized by portraying the defendants/detainees as enemies beyond the law.

Keywords: political justice; enemy combatants; terrorism trials; U.S. courts; Guantánamo Bay

This nation’s enemies may not enlist America’s courts to divert efforts and attention from the military offensive abroad to the legal defensive at home.

—Former U.S. Attorney General John Ashcroft

I. INTRODUCTION

After the attacks of September 11, 2001, the United States government vowed “to fight back, to summon all our strength and all our resources and devote our- selves to better ways to identify, disrupt, and dismantle terrorist networks.”1

Under the heading of the “war on terrorism,” the U.S. government conducted mil- itary campaigns in Afghanistan and elsewhere. U.S. personnel engaged in “tar-

POLITICS & SOCIETY, Vol. 33 No. 4, December 2005 637-669 DOI: 10.1177/0032329205280926 © 2005 Sage Publications

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geted assassinations” of presumed terrorists. A significant number of persons were detained by U.S. personnel in various places on the suspicion of having committed terrorist acts or being members or supporters of terrorist organiza- tions. These persons were quickly labeled “unlawful enemy combatants.” Their number is unknown, and their fates were diverse: very few of them were tried and convicted in U.S. federal courts. The majority of the detainees were kept incom- municado in places like Guantánamo Bay (Cuba) or Bagram Air Base (Afghani- stan)—or in the United States, if they were U.S. citizens. Reports about mistreat- ment and torture in these detention facilities surfaced soon but caused little public outrage in the United States.2 Other persons were detained—or abducted—by U.S. personnel abroad, and then handed on to other states known to mistreat or torture prisoners. This practice was called “extraordinary rendition.”3 A number of the detainees held in Guantánamo and elsewhere have been released, often in response to diplomatic pressures rather than legal requirements. The fates of the detainees suspected of being or becoming terrorists differed, but the wide major- ity of them were subject to a unique form of detention. These detentions were not based on the detainees’ alleged past wrongdoing, but on assessments of their dan- gerousness as “enemy combatants” who might engage in terrorist acts when released. This detention rationale allows for a potentially indefinite detention.

This article examines U.S. court cases arising from the “war on terror” with two purposes: first, the article aims to offer an assessment of these cases in light of the debates about human rights and terrorism. Second, the U.S. post-9/11 cases provide an occasion for the development of a theory of political justice. However, the cases examined here concern only a subsection of the “enemy combatant” detainees. Most detainees have no access to lawyers or courts. The litigation examined here accordingly concerns comparatively privileged detainees but sheds light on the larger mechanisms by which the legal-political figure of the “enemy combatant” extinguishes public concern for the rights and well-being of the detainees. In fact, one central problem about the court cases is that the detain- ees are too often not viewed as persons with rights, but as enemies who lack the attributes of persons. The U.S. legal approach in the “war on terror” has, to a large degree, shifted from what criminal law theorists have called a “criminal law for citizens” to a “criminal law for enemies.”4 While the “criminal law for citizens” treats its addressees as law-abiding persons, the “criminal law for enemies” treats its subjects as “dangerous individuals” who cannot be convinced but only forced into submission to the law.5 The U.S. approach to the “war on terror,” however, ventures beyond the “criminal law for enemies” period by placing the “enemy

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Previous versions of this article were presented at the conference on the United States and Global Human Rights at the Rothermere American Institute of the University of Oxford in November 2004, at Carleton University in December 2004, and at the Jacob Landynski Memorial Conference on Constitutionalism and Social Justice at the Graduate Faculty of the New School for Social Research in February 2005. The author thanks those who provided comments and suggestions at various stages, especially David Plotke, Andrew Arato, Michael Goodhart, Amy Bartholomew, and Nehal Bhuta.

combatants” beyond the law: criminal law becomes a moot point where detention is solely based on a person’s alleged dangerousness. In this process, the “enemy combatants” are stripped not only of rights, but also of their legal personality that is the basis for having rights. Insofar as the detainees are accorded procedural rights by the courts, these rights are understood in relation to the separation of powers within government—which branch may decide what and how—and not as a matter of the detainees’ human or civil rights. This approach stands in a marked contrast to the decision of the British House of Lords on the similar sub- ject of indefinite detentions of non-U.K. citizens who cannot be deported.6 This decision was largely based on international human rights treaties and their domestic incorporation.

What can these terrorism-related cases teach us about political justice? These cases demonstrate one prominent mechanism whereby court cases that are politi- cally contentious turn from “normal” justice—as imperfect as it might be—into instances of political justice. I am proposing a two-stage model of political jus- tice. First, there are—always—some court cases that are politically contentious: they differ from standard cases in that significant political hopes and arguments are attached to their outcome. These politically contentious cases can, but need not, develop two dimensions that transform them into instances of problematic political justice. First, the judicial process in these cases might violate the norms of the separation of powers, usually through executive intrusions into the judicial process. And second, the public vilification of one party to the trial heightens the stakes and shapes the outcome of the case. The portrayal of one party as an “enemy”—regardless of whether this exact term is used—is significant insofar as it implies the suggestion that “enemies” are not to be treated like “friends” or, as Jakobs wants to call them, “citizens.”7 To be sure, war—and enmity in war—are not lawless. But in some legal and political imaginaries, lawless and ruthless ene- mies have to be fought without the constraints of the law. These enemies are placed beyond the law. Their treatment becomes a matter of ethics and policy, thus it is not lawless. Still, the treatment of these enemies is dictated by policy con- cerns, and not by their rights as persons. They are accordingly beyond the law: they are governed by the law without being constituted by the law as persons with rights. This article will argue that both dimensions of problematic political justice occurred in the post-9/11 terrorism trials.

Examining the two dimensions of political justice—violations of the separa- tion of powers rules and the vilification of one party—separately, I will argue that the courts were more assertive in rejecting the executive branch’s reinterpreta- tions of the separation of powers than they were in questioning the assessments of the detainees’ and defendants’ status as enemies beyond the law. The courts’ eagerness to dispute executive assertions of unchecked authority over detainees coincides with the courts’ institutional self-interest in reserving a role for the judi- ciary in the determination of the fate of enemy combatants and presumed terrorists.

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Three groups of court cases that arose as part of the “war on terrorism” form the basis for this article. In the first group of cases, there are the criminal trials for terrorism or siding with the enemy: the cases of John Walker Lindh, Zacarias Moussaoui, and Richard Reid. Second, there are cases in which the U.S. govern- ment detains U.S. citizens as “enemy combatants” within the United States: the cases of José Padilla and Yaser Hamdi. Third, there are cases of “enemy combat- ants” who are not U.S. citizens, and who were detained outside the U.S. In June 2004, the U.S. Supreme Court ruled on aspects of the cases of Padillia and Hamdi as well as on the third group of cases: detainees held in Guantánamo Bay, a place where the United States has jurisdiction but no complete sovereignty. The analy- sis will ask how the cases unfolded, which arguments were used by the parties, and how the courts reacted to these arguments. I first introduce the cases and the main issues they raised. In a next step, I develop my theory of political trials and utilize it for explaining the deficits in the proceedings as well as the arguments used by the courts in the analyzed cases.

II. THE CASES

2.1. The Criminal Cases

Zacarias Moussaoui, a French citizen, was arrested on August 17, 2001, on immigration charges. He had aroused the suspicion of teachers at his flight school when he only wanted to learn how to fly but not how to start or land a plane. He is the only defendant in a U.S. criminal case who is suspected of having been part of the conspiracy that led to the 9/11 attacks. It is alleged that he would have been the “twentieth hijacker” on the plane that crashed in Pennsylvania. On December 11, 2001, the government announced that Moussaoui would be tried in a federal court, not in one of the military tribunals that had been established by executive order a month earlier.8 Even though Moussaoui’s case was left in the civilian court system, the specter of a military tribunal resurfaced later when the trial moved into impasses.

The pretrial proceedings were marked by a high degree of antagonism between Moussaoui—who insisted on acting without a lawyer—and the prosecution.9

Moussaoui proudly admits to being an Al Qaeda member and views the court and his lawyers as part of a government conspiracy to have him executed.10 His court filings and speeches were saturated with slurs to the point that his sanity was in doubt.11 Moussaoui’s insistence that the trial was a mockery was reinforced by the government’s intransigent stance on defendants’ rights in relation to security con- cerns.12 The main point of contention was Moussaoui’s request to interview wit- nesses who are being held incommunicado as enemy combatants in Guantánamo Bay and elsewhere. As a result of these disputes, the proceedings were widely perceived as a “circus,” and Moussaoui was blamed for this undignified process. Soon critics began wondering whether a military tribunal would not have been

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more appropriate: there Moussaoui would not get an audience for his political views, and he would not get the access to the witnesses he requested. Moussaoui’s latest guilty plea of April 2005 contains detailed statements about his connections to Al Qaeda and Osama bin Laden.13 If the plea is eventually accepted despite the doubts about Moussaoui’s mental health, this means that this terrorism case does not have to be argued out in court. Thus the law, the access to evidence, and the interrogation methods remain legally largely uncontested.

John Walker Lindh was captured in Afghanistan after the Taliban prisoner uprising in Mazar-i-Sharif in late November 2001. While he was awaiting medi- cal attention, he told a CNN journalist and military interrogators that he enjoyed his experience in Afghanistan and identified with jihad. Already at the time of Lindh’s interrogation and incommunicado detention in Afghanistan, the U.S. public discussed his apparent treason.14 It was widely thought that by joining the Taliban, he had become an enemy of the United States and thereby morally—or even legally—forfeited his U.S. citizenship.15 Lindh’s case accustomed the public to the idea that enemies of the United States might carry a U.S. passport that they don’t “deserve”: the enemy status was made more important than the citizenship status, paving the way for the later treatment of José Padilla and Yaser Hamdi that only few people objected to.

John Lindh claims that he was interrogated while being held under inhumane conditions and being denied proper medical treatment and access to a lawyer.16

U.S. authorities denied any mistreatment and maintained that Lindh did not need or could not get a lawyer because he was held as a wartime captive, not as a crimi- nal suspect.17 The interrogations were aimed at gathering vital intelligence about the enemy and were legally part of the battlefield actions, so the Miranda rights did not have to be read. Yet the criminal case against Lindh rested on statements from these interrogations.

During the trial, the government tried to connect Lindh to the death of CIA officer Michael Spann during the prisoners’ uprising in Mazar-i-Sharif. The con- nection between the “hero” Spann and the “traitor” Lindh galvanized public sup- port for the legally weak case against Lindh.18 Treason could not legally be proved, but administration officials suggested that when Lindh was interviewed shortly before the uprising and remained silent, he had chosen sides by failing to warn his fellow countrymen of the imminent uprising that would bring about the death of Michael Spann.19 Given the uncertainties of a jury trial in an atmosphere in which many potential jurors saw him as a radical enemy and wanted to strip him of his citizenship, Lindh entered a plea arrangement. On July 12, 2002, he pleaded guilty to two minor charges and was sentenced to twenty years in prison. The gov- ernment did not need to argue out the case and did not have to disprove the allegations of mistreatment.

Richard Reid, a U.K. citizen, tried to ignite his explosives-filled sneakers on an American Airlines flight from Paris to Miami on December 22, 2001. He was sub- dued by passengers and crew members. Although then–Attorney General John

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Ashcroft repeatedly announced that Reid was charged as an Al Qaeda–trained ter- rorist,20 the indictment was not based on any Al Qaeda link. Reid decided to plead guilty, and was sentenced to life in prison. In his guilty plea, he rejected the authority of U.S. law and confirmed the Justice Department’s designation as a public enemy: Reid stated that he used a destructive device in an act of war.21 The judge rejected Reid’s self-proclaimed warrior status, saying that he did not con- sider Reid an enemy combatant but a terrorist. Calling Reid a soldier, the judge reasoned, would give him too much of a standing.22 Both sides grasped the politi- cal importance of distinguishing between criminals (who supposedly accept the authority of domestic law) and warriors (who reject the enemy’s domestic law but are possibly subject to international legal norms). Reid squarely attacked the authority of the U.S. law in order to pose as a captive warrior who is illegitimately subjected to the enemy’s law. The judge, in turn, defended the authority of the court and—in contrast to the government’s stance in the Padilla and Hamdi cases—rejected the rhetoric of war and enemy. The stress on the absence of war and the depiction of Reid as a criminal was meant to enhance the legitimacy of the court decision as an impartial judgment rather than a case of wartime victor’s jus- tice. This is the only politically contentious U.S. terrorism case examined here that did not turn into a case of political justice.

2.2. U.S. Citizens as Enemy Combatants

José Padilla, a U.S. citizen, was arrested at Chicago O’Hare Airport on May 8, 2002. He was first detained as a material witness in a “dirty bomb” plot until, a month later, the government suddenly changed the rationale for his detention: speaking from Moscow, John Ashcroft ordered José Padilla’s detention as an “enemy combatant,” adding that the arrest “disrupted an unfolding terrorist plot to attack the United States.”23 The government soon acknowledged that the alleged plot had not advanced beyond the initial planning stages.24 Padilla was suddenly detained as an enemy combatant and not as a criminal suspect because the govern- ment could not construct a criminal case against him. Therefore, the detention rationale was based not on what he had done but on what he might do if released. In addition, his “intelligence value” should justify his continued detention:

Our interest really in this case is not law enforcement, it is not punishment because he was a terrorist or working with the terrorists. Our interest at the moment is to try and find out everything he knows so that hopefully we can stop other terrorist acts.25

Within days of the detention, an administration advisor on terrorism trials and two former government anti-terrorism lawyers took to the op-ed pages to justify the detention. Administration advisor Ruth Wedgwood assures that habeas cor- pus review would still be available.26 Victoria Toensing, who established the ter- rorism unit in the Justice Department under President Ronald Reagan, states less

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soothingly that the criminal justice system is not the proper place for fighting ene- mies, and that keeping Padilla there would be a threat to national security.27

Douglas Kmiec, former counsel to George Bush Sr. and Reagan, reminds the readers that the country is at war. This, he continues, is key to understanding and approving the military detention of Yaser Hamdi and José Padilla.28

What were the intended legal consequences of designating Padilla an “en- emy”? The government’s position was that, being an enemy combatant, Padilla has no right to meet his lawyer, Donna Newman, or to challenge his status as an enemy combatant. Even habeas corpus review should be unavailable because Padilla is not held as a criminal suspect but as an enemy: a habeas petition would “interject this court into the president’s conduct of ongoing hostilities.”29 This assertion is based on the logically prior and irrefutable designation of Padilla as a public enemy. Indeed, the government’s position is that this designation is virtu- ally a “decision” in the Schmittian sense: not reducible to a subsumption of a case under a general rule, and beyond the possibility of independent rational review.30

This decision moves Padilla into an exceptional status beyond the normal law: legal recourse should not be available to him because he was not accused of break- ing the law, but of being a threat to the law who needs to be kept beyond the law. If Padilla’s case were still in the area of criminal law, it would be in the field of Jakobs’s “criminal law for enemies”: there, “punishment serves as a prevention of future crimes, not as a retribution for past ones.”31 But the case is not a case of “criminal law for enemies” because there are no significant references to criminal conduct. All we are told is that Padilla is dangerous. Therefore, he is placed in a legal situation in which he ceases to exist as a person with rights.

The courts were partially at unease when they were asked to certify their own abdication of authority in this case. The U.S. District Court agreed that the gov- ernment possesses the authority to detain Padilla under the given circumstances, but the U.S. Court of Appeals reversed the decision. In the U.S. Supreme Court decision of June 28, 2004, the material question of whether the government has the authority to detain Padilla was not resolved because the Supreme Court held that the habeas petition was filed in the wrong jurisdiction. The Court did, how- ever, address the question of possible government justifications for detaining Padilla indirectly in its related decision in the case of Yaser Hamdi.32

Yaser Esam Hamdi was arrested in Afghanistan in late November 2001 during the Mazar-i-Sharif prison uprising, and subsequently brought to the Guantánamo Bay detention center. In early April 2002, U.S. authorities found out that Hamdi, who was born in Louisiana, holds U.S. citizenship. He was still considered an enemy combatant, but the newly discovered facts about his citizenship led to his transfer to a military prison in the continental United States: like Padilla and Lind, he is both a citizen and an enemy. Unlike Lindh, however, Hamdi did not enjoy the benefits of criminal procedure. On May 10, 2002, Hamdi’s court-appointed law- yer, Frank Dunham, filed a writ of habeas corpus. A district judge initially

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allowed Dunham to meet his client in private.33 The government appealed this rul- ing to a panel of the Fourth Circuit Court, which remanded the case to the district court because the latter did not properly “consider what effect petitioner’s un- monitored access to counsel might have on the government’s ongoing gathering of intelligence.”34

The publicized factual basis for Hamdi’s enemy combatant status was thin: the prosecution only produced a declaration of six pages written by Michael Mobbs, a special advisor to Defense Department Undersecretary Douglas Feith, which is based on third-party information. In the document, Mobbs admits that “some information provided by the sources remains uncorroborated and may be part of an effort to mislead or confuse U.S. officials.”35 These doubts notwith- standing, the appellate court unanimously held that “asking the executive to pro- vide more detailed factual assertions would be to wade further into the conduct of war then [sic] we consider appropriate” and rejected the lawyer’s petition.36 The court accepted a thinly substantiated “enemy combatant” designation by the gov- ernment on the grounds that in wartime, the courts’ deference to the executive authority gains in importance and “the Constitution does not specifically contem- plate any role for courts in the conduct of war, or in foreign policy generally.”37

The designation of Yaser Hamdi as a dangerous public enemy thus leads an appel- late court to assume that the detention of a U.S. citizen on U.S. territory is a matter of “foreign policy.” Is such a conclusion possible because in this political logic, enemies—even those who are nominally citizens—become foreigners? In any case, the “enemy” designation makes the difference between the treatment that Hamdi was accorded and the treatment that a criminal suspect in the United States is normally accorded.

In the Supreme Court, the Hamdi case raised separation of powers issues more directly than the Padilla case because if a habeas petition was allowed at all, it was filed in the correct jurisdiction. The two central questions both concerned the scope of presidential and judicial powers: first, is there a constitutional or con- gressional authorization for the executive to detain an American citizen under the conditions and circumstances in which Hamdi was detained? And, second, which procedure is someone who is detained under these powers entitled to in order to challenge the factual or legal basis for their detention? The Supreme Court plural- ity of three justices argued that Congress’s resolution authorizing the president to use “necessary and appropriate force” to counter the attacks of 9/11 was sufficient as an authorization of the detention of enemy combatants defined as persons who are “part of or supporting forces hostile to the United States or coalition partners.” Hamdi is, however, entitled to a “fair opportunity” to rebut the facts on which his detention is based in front of a “neutral decisionmaker.”38

This balancing act did not command widespread agreement. Justice Clarence Thomas argues that this compromise is an unjustified intrusion into executive power, while Justice Antonin Scalia proposes that Hamdi is entitled to a full crim-

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inal trial as long as Congress does not suspend habeas corpus. The case was pri- marily framed and argued as a dispute about the separation of powers rules—and not, for example, about Hamdi’s human rights. The most extreme attempt by the U.S. government to assert unchecked authority over detainees, however, was the establishment of detention centers in Guantánamo Bay and other places outside the U.S. sovereign territory in the hope to enter a jurisdictional void.

2.3. The Guantánamo Bay Detainees

The U.S. detainees in Guantánamo Bay were arrested over the course of the U.S. military action in Afghanistan. The first detention facilities opened in Janu- ary 2002, and the area has been redesigned for long-term detention. Up to 600 detainees were held there at the same time; the numbers are gradually declining.39

The Guantánamo detainees were not meant to have access to the U.S. judicial sys- tem because of their personal status (as enemy combatants) and the place of their detention: they are not U.S. citizens and, moreover, are presumed unlawful enemy combatants; and the United States has jurisdiction but no full sovereignty in Guantánamo Bay. This has previously been interpreted to preclude the jurisdic- tion of U.S. federal courts—at least as far as non-U.S. citizens are concerned. In fact, the location was chosen for the detention facility precisely because of this unique legal status. While the “war on terror” provides one rationale for creating exceptions from the rule of law for an indeterminate period of time, the status of Guantánamo Bay legitimizes a spatial exception from the rights normally accord- ed to detainees under U.S. control.40 However, since the “war on terrorism” pro- vides for a potentially indefinite temporal exception, the war-induced state of exception is becoming permanent—though confined to Guantánamo Bay and other marginal “permanent spaces of exception.”41

Habeas corpus petitions brought on behalf of Guantánamo detainees were ini- tially rejected by courts in California and the District of Columbia.42 Although courts have thought that the detainees “have some form of rights under interna- tional law,”43 they did not review the petitions. “Some form of rights” was simply not sufficient for noncitizen enemy combatants detained by the United States out- side U.S. sovereign territory. According to the government, the detainees should eventually be tried in military tribunals. The tribunals would offer a minimum of process, but their decisions cannot be appealed to any U.S., foreign, or interna- tional court. The complaint of the detainees was, however, that they had not even been accorded a military tribunals procedure to determine the legality of their detentions after 2-1/2 years in Guantánamo Bay.44 About 150 detainees were released over time, but the releases are due as much to diplomatic pressure from their home countries as to executive determinations that they did not pose a threat anymore.45

The Supreme Court had to decide whether federal courts have jurisdiction to review habeas petitions brought on behalf of Guantánamo detainees, or whether

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the personal status of the detainees or of their place of detention precludes juris- diction. The majority argued that the decision widely thought to be a precedent, Johnson v. Eisentrager (1950), does not apply.46 First, the detainees are not clearly enemy combatants or enemy aliens because they are not nationals of countries with which the United States is formally at war.47 Thus, they do not fit the classic definition of “enemy alien.”48 Second, they dispute having been engaged in illicit warfare against the U.S. And finally, they have not been accorded a judicial or other procedure to determine the veracity of their claims, or have even been for- mally charged with any wrongdoing.49 In addition, the Court argues that the case at hand posed the danger of creating an “unconstitutional gap” in the authority of federal courts with regard to jurisdiction over habeas claims: no single court clearly has statutory jurisdiction, but the detainees have a constitutional right to have their petitions heard.50 The Court fills the gap by resorting to “constitutional fundamentals,” arguing that a legal vacuum depriving persons in U.S. custody of access to the U.S. court system cannot be tolerated, and by construing the habeas statute to confer federal courts jurisdiction over the petitions brought from the Guantánamo detainees.51 The Court did not, however, detail the procedures due to the detainees trying to challenge their status. The Supreme Court thus enlarged the scope of judicial power against the explicit claims of the executive that wanted to keep Guantánamo Bay beyond the reach of civilian courts—without, however, providing immediate juridical benefits to the detainees. In order to comply with the Supreme Court decision, the military created “Combatant Status Review Tri- bunals” (CSRT). Detainees have to argue their cases for themselves and cannot see the complete evidence against them. One-third of the detainees have declined to attend their hearings; their cases were decided in absentia. The CSRT’s have found that all except for thirty-three detainees were held properly as unlawful enemy combatants.52 This miniscule chance of release on the basis of a procedure in which the detainees have little chance to effectively rebut the evidence against them suggests that while the government might have been unsuccessful at devis- ing military commissions to try and convict or acquit enemy combatants, there is less judicial resistance to the detentions of prisoners as “enemy combatants” without charges for an indeterminate period of time.

What lessons can be drawn from these cases? How are they different from other court cases? First, the criminal cases against John Walker Lindh, Richard Reid, and Zacarias Moussaoui were very public, and were publicly connected to political agendas. The courts were portrayed as arms of the government engaged in the war on terror. The introduction of the war logic in the criminal cases led to a low tolerance for acquittals: once a case is promoted as part of the war on terror, the government cannot afford to lose it. In this logic, the courts represent a poten- tial obstacle to a deserved prison sentence for a proven terrorist rather than a forum for testing the evidence.53 If a case may not be lost because it is part of a war, the government takes further steps to challenge the authority of the court: In the

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Moussaoui case, for example, the government repeatedly raised the specter of transferring Moussaoui to a military tribunal where procedures are shorter, defen- dants’ rights are fewer, and judges as well as prosecutors are under military com- mand. The case against Richard Reid was so clear-cut that not even the war rheto- ric by government officials and the defendant could damage the trial. And in the case of John Walker Lindh, accusations of torture and misinterpreted evidence linger long after he decided to plead guilty to lesser charges. The government por- trayed all three trials as part of the war on terrorism and emphasized the alleged or admitted links between the defendants and Al Qaeda.

The enemy combatant cases, in contrast, started in relative political silence. In these cases, the executive branch did not want to use the courts as part in an all- embracing strategy in the war on terror. Instead, the courts were portrayed as obstacles in this war. By connecting these detentions to the “war on terror,” the government tried to convince the courts that they could not “second-guess” exec- utive determinations and military decisions because courts have no role in fight- ing a war. The Supreme Court decisions established some limits to executive power over the detainees. Still, the limited role of the courts in the enemy combat- ant cases suggests that the government has succeeded in carving out a space of exception for its designated enemies.

Second, the judicial component of the war on terror has shifted its emphasis away from the criminal trials of the initial post-9/11 period and toward the legal figure of executive detention of unlawful enemy combatants. Thus, criminal law, whether “criminal law for citizens” or “criminal law for enemies,” has declined in importance for U.S. counterterrorism policy. The executive detention policies pose as preventive measures. They are not designed to adjudicate responsibility for past wrongdoing, or even for the preparation stages of future acts of terrorism. Instead, the “unlawful enemy combatants” are held for as long as they are deemed dangerous.

Third, in the criminal cases and the challenges to executive detentions, the gov- ernment and—to a limited degree—the courts agreed that the defendants and detainees are not merely criminals. But they could not agree on the legal and polit- ical significance of the enemy status. The government was especially vocal in the introduction of the “war” and “enemy” terminology into the courtrooms. The pur- pose of this terminology is to suggest that the persons concerned should not enjoy the standard procedural rights. At the extreme, the designated enemies become “non-persons” who have no rights or legal personality to be reckoned with.54 Only the discursive force of the enemy designation can explain how, for example, the detention of U.S. citizen Yaser Hamdi on U.S. territory becomes a matter of U.S. foreign policy.

These groups of cases—the criminal cases as well as the enemy combatant cases—were unusual in their political dimension, in the frequent usage of “war” and “enemy” language, and in their implications for the separation of powers. The

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political stakes of the cases call for a closer analysis. In the next section I will argue that the cases surveyed above suggest a powerful mechanism by which politically contentious cases develop into cases of political justice.

III. THE CONCEPT OF POLITICAL JUSTICE

Which types of trials are political trials? I argue for a two-step model. First, any open court system will confront a number of cases that are politically contentious because they raise politically salient issues. Some of these politically contentious cases reach stage two as they develop two problematic dimensions: first, the care- ful separation of roles between the executive and the judiciary might collapse if the executive values winning the case higher than judicial independence; and, sec- ond, in many politically contentious cases, one party is declared a “public enemy” with the understanding that this person does not deserve full rights in court. At the extreme, the “public enemy” is treated as a “non-person” (Jakobs). Thus, the question is no longer which rights enemies should enjoy, but whether enemies are persons capable of having rights at all.

These two dimensions of political justice signal the problems that are often referred to by the term “political justice.” Benjamin Constant, for example, com- plains about the changes in the judicial system caused by Napoleon’s wars, such as the improper influence of the military, for whom opposition is “disorder . . . the courts councils of war, the judges soldiers under orders, the accused enemies and the trials battles”;55 the addition of “representatives of the government” to local courts; and the introduction of special military courts.56 Constant objects to mili- tary courts because they see defendants as enemies, and protests the decline of judicial independence that arises from the militarization and executive domi- nation of the judicial system. These are the primary reasons why, according to Constant, political trials are objectionable.

Before further explaining the two prevalent dimensions of political justice, I want to distinguish my use of the term from three frequent usages in order to avoid misunderstandings. These accounts differ most importantly in their understand- ing of what the “political” in “political justice” refers to. Political trials are often defined (1) by the bias or unwitting partiality of the judiciary in certain cases, (2) in reference to a specified “political” area of law and state activity that the trials touch upon, or (3) by the presence of a political adversary in court whose actions are being incriminated.

1. The political bias model maintains that political justice is defined by the way a judicial decision is arrived at. In the radical version of this model, judges con- sciously decide cases in accordance with their own political views.57 More sub- tle and sociologically founded accounts stress that judges are often recruited from a particular social background, and that this background and the training they receive make them systematically more receptive to certain claims than to

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others. The political bias model has two important problems. First, it cannot delimit the area of political justice. If political trials were different because their decisions manifest explicit or implicit judicial bias, which trials would not be political trials? At the extreme, the political bias theory only states the obvious: that the judiciary is never insulated from the political and social con- text. Though valuable as a corrective to a purely legalistic understanding, this model cannot point to a theory of political justice. Second, the political bias model tends to be a rationalization for lost trials rather than an analytical model. Friedrich Wolff, an East German lawyer with the rare distinction of first defending scores of political defendants in the GDR and then defending the former East German head of state Erich Honecker in court, accordingly states in his book, titled Lost Trials 1953-1998: My Defenses in Political Cases, “All cases that I thought were political trials were seen as unpolitical trials by the prosecution and the judges. . . . My political trials are thus political trials according to my interpretation.”58 If only lost trials are political trials, cases will be “political” according to one party and “unpolitical” according to the other party; and the model has little analytical value.

2. The political core model identifies political trials according to the area of law and state activity they touch upon. It presumes that there is a “core” of state activity that is “political” and thus the object of “political” trials.59 This center of state activity is “immediately concerned with the conflicts about the type of political system,”60 with the “protection of the state, the political order, its insti- tutions and representatives, its symbols, and the political process of forming opinions and majorities.”61 Political justice according to the “political core” model takes place when the judiciary “takes on the task of defending the exist- ing power structures in an unmediated way and thereby becomes a part of the conflict about the political order.”62 This concept also raises serious problems. First, the “political core” model views intense political conflict as a challenge to the “core” of the polity. A concept of politics that centers on the preservation of the state makes it harder to carve out a space for political arguments that are not perceived as threats, and thus not liable to be criminalized. The nongovern- mental party to a conflict is easily criminalized or vilified because conflict is viewed as a threat to the state, and not just to a particular policy. In this model, the “political core” of state activity is vigorously protected, even with means that include the partial breakdown of the separation of powers and the vilifica- tion of the perceived challenger to the state. Thus, the “political core” model tends to condone the instances of political justice that it can identify. Second, the approach not only adopts the perspective (though not always the point of view) of the prosecuting party, but also tends to accept the existence of the two problematic dimensions of political justice as necessary for warding off chal- lenges against the state. If a conflict is portrayed as a threat to the state, the challenger turns into an enemy of the state, and the standard procedural safe- guards are thus more easily cast aside. Critics of political trials who adopt this model therefore often feel the need to point out that the challengers on trial were in fact no credible or imminent threat to the state.63 Finally, the “political core” model operates with a too narrow and state-centered concept of politics.

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Politically contentious cases need not challenge the political system, and they need not arise under laws designed to protect the state. Instead, political con- flicts can concern important principles that do not challenge the political sys- tem. For example, cases like Brown v. Board of Education (1954) or Roe v. Wade (1973) concerned fundamental political issues, but not the continued existence of the political system. So why should they not be viewed as poten- tially political cases? It is obvious that a concept of politics that centers on the preservation of the state is too narrowly concerned with some areas of law, at the risk of neglecting other fields in which different political views are adjudi- cated. The “political core” model is thus problematic because it views political conflicts as challenges to the present political order in a way that gives too much deference to the evaluation of the executive.

3. The political conflict model maintains that political justice describes trials in which political adversaries use the court in order to have their claims legiti- mized, and to change the distribution of political power.64 Political justice according to this model is “a political conflict argued out with legal means.”65

The political conflict model presumes that the other party in court is a political adversary and that the presence of this political adversary transforms the trial into a “political” one. Some political trials follow this pattern, but others don’t. In many political cases, the characters involved in the courtroom drama are secondary because the dominant political aspect of the case is an issue, and not a person. Moreover, the courtroom adversary might not be a competitor for social or political power at all. Some defendants might have committed crimes for political reasons but are not part of a sizable and coherent political group that the state might take the trouble to delegitimize through legal proceedings; such is the case with terrorists like Timothy McVeigh and the current slate of Al Qaeda suspects. In these cases, the government does not want to criminalize a political party through judicial action but wants public approval for the cho- sen strategy in dealing with a perceived threat. The issue is certainly political, but the persons in court are not political adversaries.

In sum, the three alternative definitions of political justice are not sufficient because they implicitly take sides with either the state party (political core model) or challengers who lost a case (the political bias model), or they narrow down the number of potential political cases in accordance with a too narrow concept of politics. In contrast to these three definitions, I propose a two-stage model: some trials are politically contentious because they deal with politically salient issues. Some of these trials, in turn, become instances of political justice because they violate the separation of powers rules or vilify one party to the case. This defini- tion does not place restrictions on the area of law under which the cases arise, and it does not suppose that a case under the sedition laws is any more “political” than a case about equal opportunity in education. This definition also does not adopt an evaluation of actions as “political” or “unpolitical” by either party. And, finally, this definition allows us to tell which trials are political trials regardless of which

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party has “won” and irrespective of whether the claims of the prosecution, of the defense, or of certain political groups have been upheld.

In this model, political trials occur when at least one of two dimensions is pres- ent: the violations of the separation of powers norms, and the construction of one party to the case as a public enemy. However, this model is primarily based on the U.S. post-9/11 cases. What are the limitations that arise from these sources? First, the interlocking mechanisms of vilification and abridgment of the separation of powers might be specific to terrorism cases—although this need not be the case. Thus, it is possible to imagine other political-legal mechanisms that steer trials away from the normal mode of interaction between the judiciary, the political branches, and the public. Second, the U.S. cases arise in a context in which a stated adherence to the rule of law, separation of powers, and nonvilification of defendants is the norm. Political justice appears as an exception to that norm—an exception that is triggered predominantly by the convergence of executive inter- ference and vilification of the defendants or detainees. This model of political jus- tice thus presupposes that the administration of justice normally operates in a dif- ferent mode, and that political justice is the exception that needs a political legitimation. Where show trials are the norm, this model of political justice has only limited analytical purchase.

I will now introduce the idea of politically contentious cases and the two prob- lematic dimensions of political trials, explain the dynamics arising from them, and examine the U.S. post-9/11 trials in light of this model of political justice.

3.1. Politically Contentious Cases

Some cases raise politically salient issues. But how can we know which issues are salient at any given time and place? I propose that a case is politically conten- tious if one party credibly claims that the issues at stake are of central importance to the political life of the jurisdiction in which the case arises. This criterion does not rely on a consensus about whether any given case is “political.” It might falsely identify some trials as “politically contentious” on the basis of fraudulent claims about the political dimensions of a case. Still, since “politically conten- tious” is not a reproach but an analytical category, it is better to scrutinize more cases for the potential presence of the two troubling dimensions of political jus- tice than to ignore some politically contentious cases altogether.

Why are the U.S. post-9/11 terrorism cases politically contentious? The gov- ernment and the defense lawyers raised fundamental questions and suggested answers to the courts. The government portrayed the cases as part of the “war against terrorism.” It asked the courts to confirm the incommunicado detention of citizens and foreigners as enemy combatants, and publicly questioned whether the courts were up to the task of defending the country against terrorists. More importantly, the government asked the courts to confirm their version of the politi- cal reality—an open-ended war on a transnational terrorist network—against

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alternative interpretations. The lawyers for the detainees and defendants stressed related questions: is the president authorized to declare persons enemy combat- ants in a war undeclared by Congress and without review by the courts? How does the law change when there is a war? Who can properly recognize “enemies,” and how? Can information obtained from interrogations “on the battlefield” without the presence of a lawyer be used in court?

The courts’ early answers to these questions often confirmed the administra- tion’s outlook on the situation. The Supreme Court justices, though disagreeing on the legal evaluations of the cases, repeatedly stressed the fundamental political questions involved: the minority in Rasul v. Bush, for example, accuses the major- ity of “an irresponsible overturning of settled law in a matter of extreme impor- tance to our forces currently in the field.”66 In making this change, the minority in Rumsfeld v. Padilla agrees, with the majority that the case is politically important. Yet the majority disagrees with the minority’s account of the nature of the political stakes.

At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the Rule of Law. Unconstrained executive deten- tion for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.67

The plurality opinion in Hamdi v. Rumsfeld starts its attempt to strike a com- promise between the interests involved by noting that “at this difficult time in our Nation’s history, we are called upon to consider the legality of the government’s detention of a United States citizen on United States soil.”68 The courts and the Supreme Court justices were keenly aware of the political importance of these cases. Their disagreements mainly stem from diverging evaluations of the rights and interests at stake, not from a refusal to recognize the political significance of their decisions. The political salience of cases raises the stakes, but it does not turn them into instances of political justice. Still, these politically contentious cases have the potential of turning into political justice. In the post-9/11 world, the pri- mary mechanism by which politically contentious cases became instances of political justice was the convergence of vilification and executive interference.

3.2. Political Justice I: Overstepping the Boundaries of the Separation of Powers

The separation of powers imposes limits on the executive interference in the ongoing judicial business. The institutional aspects of a court case can affect the balance of powers between the three branches of government: which branch may decide what, and in which procedure? In political trials, the most common viola- tion of the rules establishing the separation of powers is the executive interference

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in judicial proceedings. The interference can be so extreme that the executive vir- tually delivers the “script” of the trial in which the prosecution and the judges are merely acting in their assigned roles.69 But not only totalitarian and authoritarian regimes are liable to violating separation of powers rules in cases that are dear to the government. The problem regularly appears—though to a lesser degree—in constitutional democracies. In order to see why governments are tempted to over- step the boundaries of the separation of powers, and why they nonetheless usually refrain from it, it is necessary to consider the role that the separation of powers plays with regard to judicial decisions.

Courts legitimize and authorize actions of the other, “political,” branches. They can fulfill this task because they operate according to preestablished rules and maintain their independence from the executive and the legislative. The courts’ independence and the legality of the proceedings thus give the court deci- sions their public legitimacy.70 And because the courts are relatively well insu- lated against the claims of political power, they can also decide against the current power holders. The legal and political ramifications of a politically contentious case can be “almost as uncertain as the outcome of an election campaign.”71 In order to reduce this uncertainty, those in positions of political power sometimes try to take shortcuts when they insist that they cannot afford to lose the case. The only way to secure a favorable outcome, of course, is by disregarding some of the boundaries set by the separation of powers. The price to be paid for this transgres- sion will be a lower political surplus value of the court decision. Court decisions that seemed predetermined will not legitimize government action or convince people to change their views on an issue.72

Governments face the dilemma of either being sure to win a case or being cer- tain that the decision with an uncertain outcome will command public legitimacy. Constitutions order governments to choose the second alternative, but govern- ments sometimes find seemingly compelling reasons for why they cannot lose a certain case even at the price of violating ordinary separation of powers rules. In these cases, it is justified to speak of political justice. In the post-9/11 cases specif- ically, the violation of the separation of powers was linked to a prior vilification of the defendants or petitioners. The asserted dangerousness of a defendant or detainee is one of the most convincing arguments to this effect. Indeed, the poten- tial damage that could be inflicted by someone who was let free because of lack of evidence or because he was “only planning” to commit terrorist acts would be immense. And in times of public fear of further terrorist attacks, even a minimal risk of another attack committed by one of the designated “enemy combatants” can suffice to legitimize the detention policy in the eyes of a wary public. Ruth Wedgwood, an advisor to the government, states that traditionally, the criminal justice system is based on the assumption that cases might be lost and criminals might wrongly be released. It might happen that a rapist goes free and assaults more women. Yet the calculus is different, Wedgwood implores the readers, if you are dealing with persons who might kill 100,000 people if they are not detained.73

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Such risk assessments, whether exaggerated or not, seem to introduce the “pre- ventive strike” doctrine into criminal and administrative law. How would you know that a defendant would be “going to do something to cause 100,000 casual- ties,” and how justified could these beliefs be if judge and jury dismiss the evi- dence? From this perspective, counterterrorism becomes an epistemological problem. In the end, concurrence with presidential threat assessments might be rooted in the simple fear of incurring a small risk of a large-scale attack by ques- tioning executive authority.

In the U.S. post-9/11 terrorism cases, the government undermined the separa- tion of powers rules mainly by two interlocking strategies. First, the administra- tion consistently argued that courts should play no role in the conduct of warfare and hence not challenge executive determinations in the context of the “war on terrorism.” And, second, the establishment of military tribunals, or the threat thereof, squarely challenged the jurisdiction of civilian courts. In addition, there were restrictions on the defense—justified with regard to security concerns—in the criminal cases, and lack of access to lawyers in the enemy combatant cases. These restrictions also serve to either hinder the defense or prevent court cases altogether, but they will not be discussed here. Instead I will concentrate on the direct challenges to the courts’ authority.

First, the government argued that the courts are not entitled to review gov- ernment determinations of who is an enemy combatant and which witnesses in Pentagon custody can be interviewed. In the case of José Padilla, judges were warned not to second-guess the military’s enemy combatant determination. Doing this, the prosecution argued, would interfere with the constitutional pre- rogatives of the commander in chief.74 Even a writ of habeas corpus would “inter- ject this court into the president’s conduct of ongoing hostilities.”75 This strategy could only succeed because the government could convince the courts that the detentions and the interrogations in Afghanistan, South Carolina, and Guantán- amo are part of an ongoing war, so that any procedural hurdles or judicial review would move the battlefield into the courtroom.76 The enemy appears not as a person, but as a danger to be contained.

In Hamdi v. Rumsfeld, the separation of powers perspective shaped the jus- tices’ responses to the question of whether there was a congressional authoriza- tion for the detention. To be legal, the detention of Hamdi needed to be part of the military campaign that was authorized by Congress, as the plurality holds. The opinions by Justice David Souter (concurring in part and dissenting in part) and Justice Scalia (dissenting) argue that the presumed authorization is too vague to allow such grave deprivations of liberty like the potentially indefinite detention of citizens as enemy combatants.77 Both opinions explicitly argue that finding an authorization in a vague congressional resolution would give the executive pow- ers that jeopardize the separation of powers—in relation to both Congress and the judiciary.

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The separation of powers perspective controls not only the issue of an alleged authorization of the detention, but also the decision on what procedure Hamdi is entitled to in order to challenge his status. The more procedural rights Hamdi is accorded, the less will the government’s determination be taken at face value, and the more will the government have to give public and substantiated reasons for his continued detention. According to the view of the administration, any judicial inquiry into the enemy combatant designations would be a challenge to executive authority. Yet any measure of procedure accorded to Hamdi could strengthen the legitimacy of the detention by subjecting it to added independent scrutiny. To be sure, judicial inquiries into the grounds of the detention could also reveal that the detention was unjustified.

In the Guantánamo case (Rasul v. Bush), the justices again stress the implica- tion of the decision for the separation of powers. While the majority rules on very narrow grounds by comparing the facts in the case with the facts in the alleged precedent of Eisentrager, the concurring opinion by Justice Anthony Kennedy explicitly stresses the separation of powers aspect. Granting that Eisentrager “indicates that there is a realm of political authority over military affairs where the judicial power may not enter,” he stresses, “a necessary corollary of Eisentrager is that there are circumstances in which the courts maintain the power and the responsibility to protect persons from unlawful detention even where military affairs are implicated.”78 The dissenters also view the scope of executive power as the primary issue at stake, but they disagree with the majority on how the interest of the executive in its own unchallenged power should be balanced against the interest of the detainees in challenging their status: “The Commander in Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs.”79 In sum, the Guantánamo Supreme Court decision clearly justified the expansion of judicial authority against the strongly voiced claims of the executive by the need to safeguard detainees against potentially illegal detention—against a dissenting opinion that finds greater virtue in heightened deference to the executive in wartime.

Second, in the terrorism trials the civilian courts were reminded that military tribunals constitute another available option in the “war on terrorism.” The gov- ernment asked the courts to play their part by allowing the incapacitation of enemy combatants through continued detention and without concrete charges by privileging the military over the juridical logic.80 Courts were expected to justify the government’s treatment of enemy combatants and terrorism suspects and to satisfy the public’s wish for the legitimacy of legality. Courts were hailed as long as they fulfilled these expectations. When John Walker Lindh pleaded guilty, a government attorney interpreted this as a victory for the American people, adding that the case shows that the criminal justice system is suitable for combating ter- rorism.81 On the other hand, when the prosecution and the judge had diverging

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assessments about the conditions needed for a fair trial, the idea of military tribu- nals reemerged. Suddenly, what is at stake in the Moussaoui case is whether the courts can still be an option in the war on terror.82 The cases were pictured as challenges to the courts, and the courts might fail.

Normally the government cannot remove cases from civilian courts unless it wishes to drop the indictment. In the post-9/11 cases, however, the government has carved out a novel legal space where the cases can be transferred to military tribunals. These tribunals emanate from a presidential order issued on November 13, 2001. As of July 2005, only 4 of about 560 detainees have formally been charged. Moreover, the legality of the entire procedure is in doubt.83 Still, the option of switching to military tribunals was consistently part of the discussions in the cases. “Given the danger to the safety of the United States and the nature of international terrorism,” declares the executive order, “it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.”84 Military tribunals differ from federal courts not only in the pro- cedures and laws that are applied. Military tribunals are established under the aus- pices of the executive power and are not independent courts. Both the prosecutors and the commissioners in military tribunals are military officers and “are ulti- mately answerable to the Secretary of Defense and the President.”85 Moreover, the rules according to which the detainees might be tried are also devised by the exec- utive branch. The tribunals’ decisions are beyond judicial review, as the Military Tribunals Order states: persons convicted by a military tribunal “shall not be priv- ileged to seek any remedy” in any court of the United States, any foreign court, or any international tribunal.86 Once a case is in the military tribunals system, it will never again be subject to normal independent judicial review.

Decisions issued by these military tribunals would not carry the legitimacy that the federal court decisions still have in spite of executive incursions into the pro- ceedings. This might be a reason why the government in practice preferred federal criminal courts to military tribunals. Yet, since the tribunals are established while the federal courts are working, the prosecution can at least threaten to move the case to a “safer” venue in case the courts do not accept the government claims. The criminal trials were influenced by the background threat of a “streamlined” procedure in military tribunals for cases which civilian courts could not handle. The detainees who lodged habeas petitions, however, complained that they had not even had the benefit of a military tribunal procedure. Given the legal dispute on the military commissions, it is not likely that these commissions will be used to a significant degree. For the Guantánamo detainees, the most likely path to being released is a determination by an “administrative review board” that they do not pose a threat anymore—that they ceased to be enemies, irrespective of whether they have committed war crimes.

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In sum, the post-9/11 terrorism cases were explicitly viewed through the lens of the separation of powers. The executive wanted the war powers expanded to include detentions of enemy combatants at home and abroad. Based on assess- ments of the risks of letting terrorism suspects go free, some federal courts ini- tially acquiesced to the stipulations of the executive. The Supreme Court, how- ever, strongly asserts that courts have to play a role in these policy areas: “[I]t does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here.”87 Yet it took the courts more than two years to develop a consistent and independent position on these urgent matters, and the actual improvement of the legal status of the designated enemy combatants is still limited as the litigation over the scope and depth of the procedure accorded to the detainees is ongoing.88

3.3. Political Justice II: Constructing Public Enemies

The second problematic dimension of political justice is the construction of one party as a public enemy. At a minimum, the allusions to “war” and “enemies” suggest the plausibility of relaxed standards. At the extreme, the enemy designa- tion denies the other’s legal and moral personality. Public vilification can there- fore legitimize infringements on defendants’ rights and violations of the separa- tion of powers rules. In a constitutional democracy, the sustained exercise of political justice in violation of procedural standards and the separation of powers needs a legitimation.89 The construction of a “clear and present danger” posed by a dangerous enemy is a frequent rationale for such a slighting of the rule of law standards. The “enemy” in these cases is not the traditional belligerent who shares notions of the laws and customs of war with the adversary. Rather, the enemy fig- ure used in the “enemy combatant” designations is at the intersection of a tradition in Western thought about the laws of war that excludes certain enemies from the law, and a concept of the enemy proposed by Carl Schmitt.

Within the codified international law of armed conflict as well as within politi- cal thought on war, we find at least two different ideas of the enemy. Some ene- mies are defined and recognized by the law, and other enemies are recognized by the law only insofar as they are placed beyond it. Articles 4 and 5 of the Third Geneva Convention, for example, define those participants in war who are enti- tled to the protected prisoner of war status when they are captured. They can be tried for war crimes, and their enemy status is legally bounded and regulated. Those who fall outside the definition of these articles, in contrast, are enemies beyond the specific scope of the convention. This bifurcation of the enemy status in the Geneva Conventions—which is often assumed to be no longer operative— is a reflection of a much older distinction in Western thought about international norms: for many thinkers, these norms primarily apply to what they call Christian

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or civilized states; and the rules for fighting Christian enemies and fighting those who are outside the scope of these norms are very different. For example, the 1912 edition of Lassa Oppenheim’s seminal international law treatise states that inter- national law is the “body of customary and conventional rules which are consid- ered legally binding by civilized States in their intercourse with each other.”90 The scope of the application of these rules is determined by the “facts of the present international life.”91 There are states—Oppenheim lists “Persia, Siam, China, Morocco, Abyssinia, and the like”—where “civilization has not yet reached that condition which is necessary to enable their governments and their population in every respect to understand and carry out the command and rules of International Law.”92 Reciprocity demands that the rules of international law can only be applied in relation to actors who can equally be expected to observe them: “[I]t is discretion, and not International Law, according to which the members of the Family of Nations deal with such states as still remain outside that family.”93 Out- side of the “family of nations” there is no law, but only ethics and policy. This dis- tinction is based on the assumption that some actors do not merely violate interna- tional law, but they don’t recognize it even in its violation. Because international law needs to rely on reciprocity, it cannot be applied in relation to those who can- not be expected to apply it. The others presumed lawlessness thus turns into a jus- tification for placing them beyond the law. The reciprocity-based idea of interna- tional law has, as far as basic norms on the treatment of persons are concerned, largely been superseded by the universalizing logic of human rights. These rights are thought to be universal regardless of express consent. If the treatment of detainees was based on the human rights framework, the reciprocity-based argu- ment would therefore have no purchase. The relatively wide acceptance of the reciprocity-based argument about the Geneva Conventions in the “war on terror” indicates, however, that the older limited and reciprocity-based view of the law of war has not completely lost its traction. The “discretion” in the treatment of enemies beyond the law allowed by the reciprocity concept of international obligation is filled with other, related notions of the enemy.

In the post-9/11 cases, the enemy beyond the law resembles the Schmittian enemy:94 the enemy is not a competitor for political power but “existentially something different and alien.” He “intends to negate his opponent’s way of life and therefore must be repulsed or fought in order to preserve one’s own form of existence.”95 This is an extreme characterization of an ideal-type enemy from which the U.S. government has borrowed in this and other occasions. Enemies can be created and shaped in political discourse. The terrorist, for example, “could be made to take on all characteristics that the accusing party decided upon.”96 The image of the terrorist enemy draws on real-world events but interprets them to suit preconceptions about the moral character of the specific enemy: rational and cal- lous, ruthless, or irrational and fanatic. There is a long history of Western societies imagining different groups of Muslims and Arabs as existential enemies.97 Carl Schmitt himself uses such an example to illustrate the apparent plausibility of his

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enemy model that does not allow for compromise: “Never in the thousand-year struggle between Christians and Moslems did it occur to a Christian to surrender rather than defend Europe.”98 If the conflict is pictured as existential, there are no independent third parties or legal rules common to both adversaries. The sover- eign “decides” on the “enemy.” In this stark view of the “enemy,” neither law nor independent judgment nor the idea of a justiciable offense have a place. This stark portrayal of the “existential enemy” helps to identify the elements from which the Bush administration’s rhetoric borrowed.

At first, the administration tried to argue that the Guantánamo detainees (and those detained in undisclosed locations abroad as well as some of the detainees in the continental U.S.) are prisoners of war—traditional belligerents bound by the common laws of war. But the administration backtracked from this designation insofar as it would have implied according the detainees the protections of the Geneva Conventions. The administration thus created a novel legal category that resonated with the war language without imposing legal obligations on the gov- ernment. The categories of “illegal combatant,” “enemy combatant,” and “unlaw- ful enemy combatant” are poorly defined.99 They have the effect of placing the designated enemy outside the law and beyond justice. According to President George W. Bush, Padilla is “a bad guy” who is “where he needs to be, detained.”100

The “enemy combatant” cases highlight another crucial element of the desig- nation of persons as “enemies” as distinct from criminals. Criminals are judged on what they could be shown to have done. “Enemies,” in contrast, are judged by their stipulated hostile commitment that constitutes them as an abstract threat. For dealing with enemies, prevention rather than punishment is the rule. The intro- duction of the “preventive strike” doctrine into criminal and administrative law is based on the logically prior designation of the detainees as dangerous and unpre- dictable public enemies by the president.

Where there are enemies, war is not far behind.101 The almost unanimous description of the situation as a war, even after major fighting in Afghanistan ended and before the war in Iraq started, is noteworthy.102 The state of war inten- sifies the political friend/enemy distinction, legitimizes heightened executive power, and paves the way for the detention of enemies during wartime. Given the description of the task of the war, there is no foreseeable end to the regime of exceptionalism. The war language implies that the courtroom case was not the United States versus Zacarias Moussaoui, but the United States versus the Enemy. Far from affirming the value of adversarial proceedings, the war language of the administration suggests a strict friend/foe distinction. And how could a court rule against the United States in such a context? Can a court even be “independent” in adjudicating between the U.S. and an enemy? It is the state, according to Carl Schmitt, which decides on who is an enemy; and conflicts among enemies “can neither be decided by a previously determined general norm nor by the judgment of a disinterested and therefore neutral third party.”103 The U.S. government is not following a purely Schmittian line. Yet by portraying the defendants or petitioners

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as enemies against whom the U.S. needs to be defended, the government suggests that they are beyond the law, and that any legal process they are accorded is a mat- ter of policy or grace, but not of rights: “This nation’s enemies may not enlist America’s courts to divert efforts and attention from the military offensive abroad to the legal defensive at home,” as Attorney General John Ashcroft put it.104 Thus, if enemies are not criminals but are a danger beyond guilt and innocence, and civilian courts might interfere with the conduct of warfare, the prospect of mili- tary tribunals or prolonged detention without access to the judicial system seems acceptable.

With the exception of Justice Thomas in his dissent in Hamdi v. Rumsfeld, none of the Supreme Court justices subscribe to the view that enemy combatant desig- nations cannot be subject to review. But are the other justices convinced that Hamdi, Padilla, and the Guantánamo detainees are not really the enemies they were portrayed as? The decisions suggest that the Supreme Court justices have no doubt that at least some of the detainees might warrant a designation as public enemies. Yet in their view, judicial procedures are capable of finding the enemies among the detainees. “Indefinite detention without trial or other proceeding,” argues Justice Kennedy, concurring in the Guantánamo decision, “allows friends and foes alike to remain in detention.”105 He does not object to “foes” being in detention, but trusts in the ability of judicial procedures to tell friends from foes. This reasoning applies to the Guantánamo detainees, who are not U.S. citizens. In the case of U.S. citizen Yaser Hamdi, however, both Justice Souter and Justice Scalia dispute that an enemy combatant status distinct from the status of a crimi- nal is necessary or legal. In reviewing the presumed congressional authorization for the enemy combatants designations, Justice Souter argues,

There is no reason to think Congress might have perceived any need to augment Executive power to deal with dangerous citizens within the United States, given the well-stocked stat- utory arsenal of defined criminal offenses covering the gamut of actions that a citizen sym- pathetic to terrorists might commit.106

Justice Scalia, pointing to previous wars in U.S. history, argues that “where the Government accuses a citizen of waging war against it, our constitutional tradi- tion has been to prosecute him in federal court for treason or some other crime” as long as habeas corpus is not suspended by Congress.107 The idea that there could be a status of an enemy that is distinct from that of a criminal by being outside the categories of criminal guilt and innocence raised more objections when it was applied to U.S. citizens than when it was applied to other persons. Still, the plural- ity opinion holds that “there is no bar to this Nation’s holding one of its own citi- zens as an enemy combatant.”108 Eventually, we are led to believe, the enemy status trumps the citizenship status.

The Court opposed the government’s infringements of separation of powers rules more than it opposed the idea that some of the persons involved in the cases

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are public enemies. However, by requiring some procedure to review the enemy combatant designations, the Supreme Court changed the nature of these designa- tions: they are no longer decisions beyond review and appeal based on few or no publicized facts—quasi-Schmittian sovereign decisions. Instead, the designation of someone as an enemy combatant under the Supreme Court guidelines would get closer to a rational administrative decision for which reasons have to be given, and which might be tested in court according to preexisting general standards. The enemy status is almost converted from a Schmittian “political” decision into a “liberal” legal determination; it is hedged within the confines of the law. Still, the Supreme Court leaves the purpose of this enemy designation—the enemy, once properly designated, is beyond the law—intact.

The Supreme Court uses similar arguments for answering the question of whether there is an ongoing war that might be complicated by adding legal requirements for executive actions. The question was answered in the affirmative: “Active combat operations against Taliban fighters apparently are ongoing in Afghanistan.”109 Yet the existence of a war does not mandate the silence of the courts, as both the plurality and a dissenting opinion point out: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”110 Justice Scalia argues explicitly that the Constitution is no stranger to the state of war:

Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommo- date it.111

War does not appear as an extralegal event unforeseen by an old Constitution, but it is hedged within the constitutional rules and precedents. Thus both the pub- lic vilification of detainees with their designation as “enemy combatants” and the description of the political context as a “war on terrorism” are curtailed but largely accepted by the Supreme Court. Yet the Court undermines the traction of the “enemy” and “war” language by nevertheless requiring some form of judicial proceedings for the detainees. Had the government’s claims about the “enemies” found less acceptance, the Court might have accorded the detainees more robust procedural rights. Now an enemy combatant who is a U.S. citizen is merely enti- tled to “notice of the factual basis for his classification, and a fair opportunity to rebut the government’s factual assertions before a neutral decisionmaker.” In the proceeding, hearsay evidence can be admitted, and “the Constitution would not be offended by a presumption in favor of the government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided.”112 If the current implementation of this standard is approved by the judiciary, Guantánamo Bay and other places will remain a “permanent space of exception” (Agamben). These spaces are not outside of the law—the applicable

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legal regulations are too dense to allow such a claim. Rather, the situation is pecu- liar in that the detainees are in a place of rightlessness in a context that is not law- less. The law, however, fails to recognize them as full persons that become subjects, and not mere objects, of the law.

In sum, the language of enemies and war helped to suggest that the detainees and defendants in the post-9/11 cases do not have the same rights as other persons would have. Enemies are not guilty of specific acts, but they are abstractly danger- ous. According to the administration’s views, the status of an “enemy” is not sub- ject to review. This view was largely upheld by the lower courts but was only par- tially shared by the Supreme Court. Although the Supreme Court accepted the suggestion that there are enemy combatants who are not criminals and yet need to be detained, the Court subjects the decision about the enemy combatant status to a limited form of judicial process.

IV. CONCLUDING EVALUATIONS

The post-9/11 terrorism trials in the U.S. inevitably stirred emotions and prompted discussions about the responsibility for the attacks, the status of Al Qaeda and the Taliban, and the reasonable scope of civil liberties. The cases that found their way to the courts were bound to be politically contentious. It was not inevitable, however, that the administration would turn most of these cases into political justice by interfering with judicial proceedings, portraying the defen- dants as enemies beyond the law, and literally trying to enlist the courts in the war against terrorism. This executive-dominated political justice even jeopardized the “image-creating capacity” (Kirchheimer) of the trials. Over time, the importance of the strict criminal justice framework in the “war on terror” declined. The administration went beyond even the “criminal law for enemies” and used means of executive detention entirely unconnected to any reproach of past wrongdoing. As of July 2005, only 4 out of more than 560 detainees at Guantánamo Bay have been charged with any crimes.113 This shift from criminal law to detention is based not only on practical but also on ideological considerations: during the 2004 pres- idential election campaign, Vice President Dick Cheney warned that a Demo- cratic administration would pose a danger to national security because it would fall back into the pre-9/11 mindset of assuming that terrorist attacks are criminal acts, and that there is no war.114

The post-9/11 trials demonstrate the attractions and dangers of highly politi- cized cases in times of public fear. The omnipresent language of enemies and war was clearly meant to legitimize the abrogation of defendants’ rights and limits on courts’ autonomy. In the cases concerning the detention of enemy combatants, the war talk was effectively used for introducing the “preventive strike” doctrine into criminal law—or for going beyond criminal law altogether. Accordingly, the problems with political trials are not limited to issues that can be neatly described as “human rights” or “rule of law issues.” The violation of the separation of pow-

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ers rules is predicated upon a political designation of persons as enemies beyond the law. This designation diminishes or denies the detainees’ legal personality. In order to reverse the legal surface of the situation exemplified by Guantánamo Bay, these underlying vilifications need to be addressed. Only when the detainees are publicly imagined as persons whose pain, fear, hopes, and rights have to be taken into account by others will they be able to gain standing as full legal and moral persons. Yet only little information about the detainees and their experiences is available. A letter written by Moazzam Begg, a UK citizen detained by U.S. and Pakistani authorities on January 31, 2002, and since held as Bagram Air Base and then Guantánamo Bay, sheds a bit more light on the experiences of persons who, for example, had not seen daylight or fresh food for a year, and who had been sub- jected to psychological and physical mistreatment. Any statements he made, writes Begg, “were signed and initialed under duress”:

The said interviews were conducted in an environment of generated fear, resonant with ter- rifying screams of fellow detainees facing similar methods. In this atmosphere of severe antipathy toward detainees was the compounded use of racially and religiously prejudiced taunts. This culminated, in my opinion, with the deaths of two fellow detainees, at the hands of US military personnel, to which I myself was partially witness.115

In spite of this treatment and his almost complete isolation, Begg continues, “I have maintained a compliant and amicable manner with my captors, and a co- operative attitude.”116 Moazzam Begg and three other UK citizens were released from Guantánamo Bay in January 2005.117 After a brief questioning by the British police, they were released without charges.118 Their release was not obtained on the level of law alone: being citizens of a key U.S. ally in the war on terror, they had a government that could (and finally did) press for their release. From the point of view of the UK public, the four were primarily citizens, and maybe sec- ondarily criminal suspects. They were not released from Guantánamo Bay for being nonenemies, or human beings, but for being citizens of a close ally. For the purpose of achieving their release, their humanity was mediated through their citizenship.

What are the potential and limit of litigation in these cases? U.S. courts have taken different positions on the rights of detainees and the scope of executive power to detain or try them. There is no clear tendency to raise the evidential and procedural thresholds for detention in favor of the detainees. The most recent decisions in the case of Salih Ahmed Hamdan demonstrate that the detainees should not pin their hopes on the judiciary: while a district court found the “mili- tary commissions” for trying Guantánamo detainees in violation of standing law,119 an appeals court reversed this decision,120 allowing the commissions with curtailed procedure to continue. Courts seem indeed more vigorous at rejecting one dimension of political justice (the violation of the separation of powers rules) than the other dimension (the vilification of the defendants and detainees). When

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courts counter unreasonable claims of authority from the executive, their action coincides with their institutional self-interest in having a role in an important area of U.S. policies. The de-vilification of the detainees and defendants, it seems, will not primarily be achieved in the courts.

NOTES

1. Former U.S. Attorney General John Ashcroft, statement before the Senate Judi- ciary Committee, quoted from “U.S. Detention of Aliens in Aftermath of September 11 Attacks,” American Journal of International Law 96, no. 2 (2002): 473.

2. See Joseph Lelyveld, “Interrogating Ourselves,” New York Times Magazine, June 12, 2005.

3. See, for example, Scott Shane, “Detainee’s Suit Gains Support from Jet’s Log,” New York Times, March 29, 2005, on the case of Maher Arar, a Canadian “rendered” by U.S. authorities to Syria.

4. See Günther Jakobs, “Bürgerstrafrecht und Feindstrafrecht,” Höchstricherliche Rechtsprechung Strafrecht (2004): 88-95.

5. Ibid. 6. Lords of Appeal, Judgment in the Cause A and Others v. Secretary of State for the

Home Department, and X and Another v. Secretary of State for the Home Department, 2004 UKHL 56. Decision of December 16, 2004.

7. Jakobs, “Bürgerstrafrecht und Feindstrafrecht,” 88. Jakobs treats “enemies” and “cit- izens” as opposites. Thereby he alludes to the more common opposites associated with these terms: “enemies” are opposed to “friends,” and “citizens” to “foreigners.” The con- clusion that “citizens” are “friends” and “enemies” are “foreigners” (or “foreigners” are “enemies”) is not suggested by Jakobs. Still, Jakobs’s odd opposition calls for a closer examination of the connection between citizenship and the enemy status. This issue also appeared directly in the U.S. cases. See, for example, George Fletcher, “Citizenship and Personhood in the Jurisprudence of War,” Journal of International Criminal Justice 2, no. 4 (2004): 953-66.

8. On the criteria for the military tribunals, see Presidential Military Tribunals Order, November 13, 2001, available at http://www.whitehouse.gov/news/releases/2001/11/ print/20011113-27.html (accessed July 19, 2005). Senator Joseph Lieberman (D-CT) immediately suggested trying Moussaoui in one of these tribunals; see Don van Natta with Benjamin Weiser, “Compromise Settles Debate over Tribunal,” New York Times, Decem- ber 12, 2001; and Robert Jackson, “Pentagon Argues Case for Military Tribunals System,” Los Angeles Times, December 13, 2001.

9. See Philip Shenon, “Terror Suspect Says He Wants U.S. Destroyed,” New York Times, April 23, 2002.

10. See Neil Lewis, “Defendant in Sept. 11 Plot Accuses Judge of Trickery,” New York Times, June 26, 2002.

11. See Philip Shenon, “Terror Suspect Says He Wants U.S. Destroyed,” New York Times, April 23, 2002; and Brooke Masters, “Defiance Could Delay Terror Trial: Moussaoui Refuses to Meet Psychiatrist,” Washington Post, May 16, 2002.

13. See Philip Shenon, “Lawyers Seek Information behind Theory on Hijacking,” New York Times, April 25, 2003; and “Crime and Justice,” editorial, Washington Post, March 27,2003.

13. See Richard Serrano, “Moussaoui Pleads Guilty to Terror Plot,” Los Angeles Times, April 23, 2005.

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14. There was consensus that Lindh had voluntarily chosen to be an enemy. Some criti- cized the president’s military tribunals order for not including citizens: “[O]ne’s status of fighting for the enemy, not one’s status as a noncitizen,” should be decisive, according to law professor David Cole; see Brooke Masters and Edward Walsh, “U.S. Taliban Fighter to Have His Rights, Rumsfeld Says,” Washington Post, December 5, 2001; also see Edward Epstein, “Boxer Says Marin Taliban Should Face Court-Martial,” San Francisco Chroni- cle, December 19, 2001.

15. See, for example, Jim Wooten, “Trials Would Give Enemies an Advantage,” Atlanta Journal—Atlanta Constitution, December 16, 2001.

16. For a defense statement, see Richard Serrano, “Lindh Team Offers List of Abuses,” Los Angeles Times, March 23, 2002. The descriptions seemed rather unlikely at the time, but seem much more plausible now after similar forms of abuse have been reported from Iraq and other detention centers in Afghanistan.

17. See Edward Epstein, “Prosecutors Belittle Lindh’s Brutality Claim,” San Francisco Chronicle, July 2, 2002.

18. Legal commentators frequently remarked that the charges were weak and changing, so the prosecution had to rely on the symbolic meaning of Lindh’s actions and statements in addition to the scattered evidence; see Leon Friedman, “It Won’t Be Easy to Convict John Walker,” New York Times, December 29, 2001; and Naftali Bendavid, “Analysts See Trouble Spots in Legal Case against Lindh,” Chicago Tribune, February 10, 2002.

19. David Pace, “Lindh Torture Claims Disputed; Government Fights Bid to Exclude His Statements from Trial,” Houston Chronicle, July 3, 2002.

20. Wayne Washington, “Suspect in Bomb Attempt Indicted,” Boston Globe, January 17, 2002.

21. Shelley Murphy, “Defiant Reid Pleads Guilty,” Boston Globe, October 5, 2002. 22. Pam Belluck, “Unrepentant Shoe Bomber Sentenced to Life,” New York Times,

January 31, 2003. 23. Dan Eggen and Susan Schmidt, “‘Dirty Bomb’ Plot Uncovered, U.S. Says,” Wash-

ington Post, June 11, 2002. 24. Patrick Tyler, “A Message in An Arrest,” New York Times, June 11, 2002. 25. News briefing by Secretary of Defense Donald Rumsfeld. Quoted from U.S.

Supreme Court, Rumsfeld v. Padilla, No. 03-1027. Decision of June 28, 2004. Justice John Paul Stevens, dissenting, 11.

26. Ruth Wedgwood, “The Enemy Within,” Wall Street Journal, June 14, 2002. 27. Victoria Toensing, “Citizenship Doesn’t Matter,” USA Today, June 14, 2002. 28. Douglas Kmiec, “This Is War, and Military Justice Is Appropriate,” Los Angeles

Times, June 14, 2002. 29. Padilla v. Rumsfeld, No. 4445, Motion to Dismiss Amended Writ of Habeas Corpus

in the U.S. District Court for the Southern District of New York, June 26, 2002, 7. 30. See Carl Schmitt, The Concept of the Political, trans. George Schwab (1932; reprint,

Chicago: University of Chicago Press, 1996), 27. 31. Jakobs, “Bürgerstrafrecht und Feindstrafrecht,” 92. 32. Hamdi v. Rumsfeld, Decision of June 28, 2004, No. 03-6696. 33. Brooke Masters, “Access to Lawyers Ordered for Detainee,” Washington Post,

May 30, 2002. 34. U.S. 4th Circuit Court of Appeals, Hamdi v. Rumsfeld, No. 02-6895. Decision of

July 12, 2002. Also see Philip Shenon, “Appeals Court Keeps American Detainee and His Lawyer Apart,” New York Times, July 13, 2002.

35. Michael Mobbs, “Declaration”, August 27, 2002, 2.

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36. U.S. 4th Circuit Court of Appeals, Hamdi v. Rumsfeld, No. 02-7338. Decision of January 8, 2003, p. 37.

37. Ibid., 38. 38. Hamdi v. Rumsfeld, Justice Sandra Day O’Connor, plurality opinion, at 9, 10. 39. See Tim Golden, “After Terror, a Secret Rewriting of Military Law,” New York

Times, October 24, 2004. 40. The creation of spatial exceptions in areas of de facto control is not new; see the

Supreme Court decision in Johnson v. Eisentrager, 339 U.S. 763 (1950). 41. Giorgio Agamben, Means without Ends: Notes on Politics (Minneapolis: Univer-

sity of Minnesota Press, 2000), 44. 42. On the decisions of the trial courts and the appeals courts, see “Ability of Detainees

in Cuba to Obtain Federal Habeas Corpus Review,” American Journal of International Law 96, no. 2, 481-82; Neely Tucker, “Judge Denies Detainees in Cuba Access to U.S. Courts,” Washington Post, August 1, 2002; Henry Weinstein, “Suit on Behalf of Prisoners Blocked,” Los Angeles Times, November 19, 2002; and Neil Lewis, “Bush Administration Wins Court Victory on Guantánamo Detentions,” New York Times, March 12, 2003.

43. U.S. District Court for the District of Columbia, Rasul v. Bush, No. 02-299. Deci- sion of July 31, 2002, 30.

44. The recent District Court decision invalidating the Military Commission process for different reasons does not increase the likelihood that the “enemy combatants” will be charged with any war crimes: it seems easier for the government to continue the detention under the enemy combatant rationale than to comply with the demanded changes in the Military Commission procedure. See U.S. District Court for the District of Columbia, Hamdan v. Rumsfeld, No. 04-1519. Decision of November 8, 2004.

45. See Tim Golden, “Tough Justice: Administration Officials Split over Stalled Mili- tary Tribunals,” New York Times, October 25, 2004; and Neil Lewis, “Guantánamo Prison- ers Getting Their Day, but Hardly in Court,” New York Times, November 8, 2004.

46. Rasul v. Bush, No. 03-334. Decision of June 28, 2004. 47. The petitioners in the Rasul et al. and Odah et al. cases that were joined by the

Supreme Court were Kuwaitis and Australians. The Court did not indicate whether this reasoning would apply to citizens of Afghanistan as well. However, since citizenship is only one of many criteria, it may be assumed that the decision also applies to Afghan citizens.

48. Also see Fletcher, “Citizenship and Personhood,” 963. 49. Rasul v. Bush, Justice Stevens, majority opinion, 7-8. 50. Ibid., 9. 51. Ibid., 16-17. 52. See Neil Lewis, “Ruling Lets U.S. Restart Trials at Guantánamo,” New York Times,

July 16, 2005. 53. The initial hard line of the prosecution in terrorism-related cases seems to have

relaxed after more than two years. Recently, prosecutors in a Detroit case against a sus- pected “sleeper cell” asked the judge for a reversal of a conviction and a retrial after dis- covering misconduct by the prosecutor in the original case. Evidence contrary to the prose- cution’s theory had been ignored, and the court, the jury, and the defense had been misled about evidence. The first prosecutor is being investigated for misconduct. See Danny Hakim, “Judge Reverses Conviction in Detroit ‘Terrorism’ Case,” New York Times, September 3, 2004.

54. See Günther Jakobs, “Das Selbstverständnis der Strafrechtswissenschaft vor den Herausforderungen der Gegenwart,” in Die Deutsche Strafrechtswissenschaft vor der

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Jahrtausendwende, ed. Albin Eser, Winfried Hassemer, and Björn Burkhardt (Munich: C. H. Beck, 2000), 53.

55. Benjamin Constant, “The Spirit of Conquest and Usurpation and Their Relation to European Civilization,” in Benjamin Constant: Political Writings, ed. Biancamaria Fontana (Cambridge: Cambridge University Press, 1988), 61.

56. Editorial footnote in Constant, “The Spirit of Conquest,” 61. 57. This is Ernst Fraenkel’s definition of political justice as distinct from his analysis

of class justice; see Ernst Fraenkel, Zur Soziologie der Klassenjustiz (1931; reprint, Darmstadt, Germany: Wissenschaftliche Buchgesellschaft, 1968), 26.

58. Friedrich Wolff, Verlorene Prozesse 1953-1998: Meine Verteidigungen in politischen Verfahren, 2nd ed. (Baden-Baden, Germany: Nomos Verlag, 1999), 7.

59. This model has often been used in analyses of German postwar political trials. See, for example, Alexander von Brünneck, Politische Justiz gegen Kommunisten in der Bundesrepublik Deutschland 1949-1968 (Frankfurt am Main: Suhrkamp, 1978), where the political core model is part of a more elaborate theory; Dieter Sterzel, “Funktionen der politischen Justiz,” in Politische Justiz, ed. Axel Görlitz (Baden-Baden, Germany: Nomos, 1996); and Herwig Roggemann, Systemunrecht und Strafrecht (Berlin: Berlin-Verlag, 1993).

60. Von Brünneck, Politische Justiz, 12. 61. Roggemann, Systemunrecht und Strafrecht, 17. 62. Sterzel, “Funktionen der politischen Justiz,” 116. 63. See, for example, von Brünneck, Politische Justiz. 64. See Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political

Ends (Princeton, N.J.: Princeton University Press, 1961); and Alexander von Brünneck, Politische Justiz.

65. Von Brünneck, Politische Justiz, 335. 66. Rasul v. Bush, Justice Scalia, dissenting opinion, 1. 67. Rumsfeld v. Padilla, Justice Stevens, dissenting opinion, 11. 68. Hamdi v. Rumsfeld, Justice O’Connor, plurality opinion, 1. 69. For an analysis of two trials belonging to this species, see Clemens Vollnhals, Der

Fall Havemann: Ein Lehrstück politischer Justiz, 2nd ed. (Berlin: Ch. Links Verlag, 2000). 70. See von Brünneck, Politische Justiz, 365. 71. Kirchheimer, Political Justice, 117. 72. See von Brünneck, Politische Justiz, 13. 73. Karen Branch-Brioso, “Quality of Evidence Colors How U.S. Handles Suspects,”

St. Louis Post-Dispatch, June 16, 2002. 74. Tom Jackman and Dan Eggen, “‘Combatants’ Lack Rights, U.S. Argues,” Washing-

ton Post, June 20, 2002. 75. Padilla v. Rumsfeld, No. 4445, Motion to Dismiss Amended Petition for Habeas

Corpus in the U.S. District Court for the Southern Circuit of New York, June 26, 2002, 1. 76. An appellate court judge suggested that this would be the immediate conse-

quence of a further inquiry into the circumstances of Yaser Hamdi’s arrest, quoted from Tom Jackman, “Judges Wary of Interference in Hamdi Case,” Washington Post, October 29, 2002.

77. Hamdi v. Rumsfeld, Justice Souter, concurring in part and dissenting in part, 3; and Justice Scalia, dissenting, 22.

78. Rasul v. Bush, Justice Kennedy, concurring, 3. 79. Rasul v. Bush, Justice Scalia, dissenting, 19. 80. Katharine Q. Seelye, “War on Terror Makes for Odd Twists in Justice System,”

New York Times, June 23, 2002.

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81. Richard Serrano, “Lindh Pleads Guilty, Agrees to Aid Inquiry,” Los Angeles Times, July 16, 2002.

82. Jerry Markon, “Much Rides on Terror Case,” Washington Post, February 19, 2003. 83. Tim Golden, “After Terror, a Secret Rewriting of Military Law,” New York Times,

October 24, 2004. 84. Military Tribunals Order, November 13, 2001. 85. Harold Hongju Koh, “The Case against Military Commissions,” American Jour-

nal of International Law 96, no. 2 (2002): 339. 86. Military Tribunals Order, November 13, 2001, sec. 4(b). 87. Hamdi v. Rumsfeld, Justice O’Connor, plurality opinion, 28. 88. See Neil Lewis, “Ruling Lets U.S. Restart Trials at Guantánamo,” New York Times,

July 16, 2005. 89. Von Brünneck, Politische Justiz, 336. 90. Lassa Oppenheim, International Law, vol. 1, 2nd ed. (New York: Longmans,

Green, 1912), 3. 91. Ibid., 30. 92. Ibid., 33. 93. Ibid., 34-35. 94. Schmitt makes a rather large point of the distinction between foe and enemy. Fol-

lowing common contemporary usage, I am collapsing his not altogether clear distinctions into different models of “enemies,” not “foes.”

95. Schmitt, The Concept of the Political, 27. 96. Lon Troyer, “Counterterrorism: Sovereignty, Law, Sovereignty,” Critical Asian

Studies 35, no. 2 (2003): 260. 97. See Gil Anidjar, The Jew, the Arab: A History of the Enemy (Stanford, Calif.: Stan-

ford University Press, 2003). 98. Schmitt, The Concept of the Political, 29. 99. The term “unlawful combatant” seems lifted from the Supreme Court decision in

Ex Parte Quirin, 317 U.S. 1 (1942), while the “enemy combatant” terminology is strikingly similar to the “enemy alien” language in Johnson v. Eisentrager, 339 U.S. 763 (1950).

100. Stephen Hedges, “U.S. Flouts Legal Rights, Lawyer Says,” Chicago Tribune, June 12, 2002.

101. War is not strictly required for the existence of enemies, but in the 9/11 cases, the administration constantly emphasized the existence of a war even when courts could not see it.

102. See Troyer, “Counterterrorism,” 269. 103. Schmitt, The Concept of the Political, 27. 104. Lyle Denniston, “Court Gives No Rights to Detained: Military’s Prisoners Can’t

Appeal,” Boston Globe, March 12, 2003. Ashcroft is, whether intentionally or not, para- phrasing the Eisentrager decision: It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. (Johnson v. Eisentrager, 339 U.S. 763 [1950], at 779)

105. Rasul v. Bush, Justice Kennedy, concurring, 4. 106. Hamdi v. Rumsfeld, Justice Souter, concurring in part and dissenting in part, 9-10. 107. Hamdi v. Rumsfeld, Justice Scalia, dissenting, 1. 108. Hamdi v. Rumsfeld, Justice O’Connor, plurality opinion, 11. 109. Ibid., 13. 110. Ibid., 29.

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111. Hamdi v. Rumsfeld, Justice Scalia, dissenting, 27. 112. Hamdi v. Rumsfeld, Justice O’Connor, plurality opinion, 26-27. 113. See Neil Lewis, “Detainee Trials to Resume Soon,” New York Times, July 19, 2005. 114. “Edwards Demands Action on Remark,” New York Times, September 9, 2004. 115. Moazzam Begg, letter, July 12, 2004, http://image.guardian.co.uk/sys-files/

Guardian/documents/2004/10/01/guan_letters.pdf (accessed July 19, 2005). 116. Ibid. 117. See Associated Press, “Last Four Britons Let Go from Guantánamo,” January 25,

2005. 118. See Associated Press, “British Police Release Former Gitmo Inmates,” January

26, 2005. 119. U.S. District Court for the District of Columbia, Hamdan v. Rumsfeld, No. 04-

1519. Decision of November 8, 2004. 120. U.S. Court of Appeals for the District of Columbia Circuit, Hamdan v. Rumsfeld,

No. 04-5393. Decision of July 15, 2005.

Christiane Wilke ([email protected]) is assistant professor in the De- partment of Law at Carleton University, Ottawa. Her research interests are at the intersection of political theory, international law, and criminal law, currently with a focus on concepts of the enemy. She is completing a book manuscript on criminal tri- als for massive human rights violations in Argentina, Germany, and South Africa.

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