The Supreme Court: Missing in Action

Since September 11, 2001, we have been fighting the so-called “war on terror” without the active participation of all three branches of government. For the first several years, a very aggressive president acted alone, without Congress or the Supreme Court. Since the Democrats regained control of Congress in 2006, the president has been acting sometimes with and sometimes against Congress. But at no time has the Supreme Court been an active participant in constitutional debates about the post-9/11 world. On the major constitutional issues of the recent past—Iraq, torture, wiretapping without warrants, the Patriot Act, and Guantánamo—the Court has decided cases related to just one of these.

It is true that the Court has intervened to decide several relevant cases following September 11: three in 2004, one in 2006, and then a few to come by this June. But to date these decisions have addressed structural constitutional issues, such as the separation of powers or the jurisdiction of federal courts. None have addressed issues related to constitutional rights, such as the right to be free from arbitrary detention or imprisonment, the right to prove one’s innocence, or the right to be treated equally. By focusing on structural issues, the Court has provided guidelines limiting the authority of the different branches of government in relation to one another, but it has provided no guidelines on what the three branches of government can and cannot do when they act in concert. The Court has talked about what the institutions of our government can do to one another, but not what those institutions can do to people.

It is not hard to imagine the past six-plus years having gone differently. If we look at the United Kingdom and Canada, for instance, we see the highest courts in those countries participating more meaningfully in the debates about the rights that are threatened when governments decide to fight terrorism. And even though their highest courts were ultimately too deferential to the decisions of the other branches of government, the mere fact of their participation had an impact on the politics of their countries that our Court has not had. The Court’s silence on the major rights issues of the day and its focus on structural issues should be a source of concern for all those interested in protecting American freedom.

What the Supreme Court Has Done

In 2004, the Supreme Court decided three cases related to the war on terror—Rasul v. Bush, Padilla v. Rumsfeld, and Hamdi v. Rumsfeld. In the first of these, the Court decided that a decades-old statute about when government detainees could apply for habeas corpus did apply to those being held in Guantánamo. Rasul, however, did not raise questions about whether those being held in Guantánamo should be there or about how they were being treated there. And when other parties before and after Rasul petitioned the Court to hear...