The Supreme Court and National Security: After Justice StevensThe Fordham Law Review in The Wall Street Journal, April 17, 2010
On April 14, 1943, a young Navy intelligence officer named John Paul Stevens listened in on the radio traffic of American pilots on a secret mission. President Franklin Roosevelt had sent them to intercept and shoot down the plane carrying Japanese Admiral Isoroku Yamamoto, the planner of the surprise Pearl Harbor attack and the leader of Japanese naval forces in the Pacific.
Admiral Chester Nimitz leapt at the chance to take out Yamamoto. He wired Admiral William Halsey, the Navy commander for the South Pacific: "Best of luck and happy hunting." Halsey messaged his officers: "Tallyho—let's get the bastard."
While successful, the mission disturbed the 23-year-old future Supreme Court Justice, who said in an interview published by the Fordham Law Review in March 2006 that there wasn't "a lot of deliberation before deciding to go along with the plan. . . . They had no humanitarian concerns at all of the kind that troubled me."
He went on to say his qualms over the killing of Yamamoto led him to question the death penalty: "The targeting of a particular individual with the intent to kill him was a lot different than killing a soldier in battle and dealing with a statistic."
If Justice Stevens, who last week announced his retirement after 34 years of service on the Supreme Court, thinks killing Yamamoto raised "humanitarian concerns," imagine his view of U.S. Predator drones raining missiles down on the heads of al Qaeda leaders in Afghanistan, Pakistan and Yemen.
Though he obviously hopes to pull the court to the left, President Barack Obama would benefit far more from the appointment of a new Justice who can properly balance national security and civil liberties. Justice Stevens has waged a five-year campaign to upend long-held understandings of the Constitution in wartime—as part of a slim 5-4 majority of the Supreme Court.
In 2004, Justice Stevens wanted to free Yaser Hamdi, a Saudi Arabian born in Louisiana, who had been captured with an AK-47 fighting with the Taliban in Afghanistan. Justice Stevens (surprisingly joined by Justice Antonin Scalia) failed to convince a majority of his colleagues that the attacks of September 11 hadn't started a war, or that the military couldn't capture and detain enemy combatants at the naval station at Guantanamo Bay, Cuba, without a criminal trial. But, also in 2004, he did pull a majority together in Rasul v. Bush, to allow al Qaeda detainees held outside the United States at the Naval Station at Guantanamo Bay, Cuba, to seek release in American civilian courts.
Two years later, in Hamdan v. Rumsfeld, Justice Stevens led a majority of the Supreme Court to block military tribunals for trying al Qaeda terrorists on war crimes; the Court held for the first time that terrorists should benefit from the Geneva Conventions. (Congress overruled Hamdan v. Rumsfeld when it signed the Military Commissions Act of 2006 into law.) In 2008, Justice Stevens was part of the 5-4 majority in Boumediene v. Bush that took the extraordinary step of refusing to obey the Military Commission Act's order that the courts cease hearing cases involving Guantanamo detainees.
Justice Stevens swept aside precedent that had long recognized the authority of the other branches of government to determine wartime policies. The U.S. held millions of POWs during World War II, and none used our civilian courts against us (except for a few cases of U.S. citizens captured fighting for the Axis).
Even after that war ended, the justices turned away lawsuits by enemy prisoners seeking their release. In Johnson v. Eisentrager, in 1950, the court held that it would not hear habeas claims brought by alien enemy prisoners held outside the U.S., and it refused to interpret the Geneva Conventions to give rights to POWs in civilian court.
The court deferred to the president and Congress on detention because "trials would hamper the war effort and bring aid and comfort to the enemy." Civilian judicial proceedings would create a "conflict between judicial and military opinion," interfere with military operations by recalling personnel to testify, and "diminish the prestige of" a field commander called "to account in his own civil courts" and "divert his efforts and attention from the military offensive abroad to the legal defensive at home."
Eisentrager's predictions have proved true. The Obama administration hastily decided to treat Umar Farouk Abdulmutallab, who attempted to destroy a Northwestern Airlines flight to Detroit last Christmas, as a criminal defendant, to be read Miranda rights and given a lawyer. Attorney General Eric Holder announced that Khalid Sheikh Mohammed, the planner of the 9/11 attacks, would be tried in civilian court in New York City. The administration has since hesitated and shown confusion over whether the civilian justice system is the appropriate venue to handle the al Qaeda threat.
Justice Stevens's crusade to overturn the executive branch's terrorism policies has even harmed American interests on the battlefield. His decision in Rasul in 2004 caused the Bush administration to panic and begin a headlong rush to release al Qaeda operatives; we now know that the U.S. released too many. According to a Pentagon report leaked earlier this year, fully 20% of the 560 detainees transferred to other countries have returned to terrorism—including the head of al Qaeda's Yemen branch and a high-ranking Taliban general.
For his presidency to succeed, Mr. Obama must prevail in no less than three wars. He must withdraw American forces from a stable Iraq, defeat a resurgent Taliban in Afghanistan, and crush al Qaeda's remaining elements. Realizing this, the Obama administration has hewed to many of the same legal positions held by the Bush administration. Specifically, it continues to defend the president's constitutional right to detain terrorists without trial, to use military commissions to try them, and to use Predators to target them abroad.
But if President Obama appoints someone to the Supreme Court who thinks like Justice Stevens, he will be fooling no one. He cannot keep his promise to the American people to fight al Qaeda with all of the tools at the presidency's disposal if he appoints a justice who will continue to obstruct and second-guess the decisions of our military and intelligence officials.
To satisfy his base, President Obama will have to nominate a justice who is pro-choice, favors racial preferences and likes broad government regulation of the economy. But he also has the flexibility to choose a justice who believes in a return to a restrained judicial role in war and national security. Senate Republicans should support the president's nominee if he does.
Mr. Yoo, a law professor at the University of California, Berkeley and visiting scholar at the American Enterprise Institute, was a Justice Department official from 2001-03. He is the author, most recently, of "Crisis and Command: A History of Executive Power from George Washington to George W. Bush" (Kaplan, 2010).