International Prosecution of Human Rights Crimes – Draft Chapter – Litigating Guantanamo – PDF

2007 Litigating Guantanamo

Litigating Guantanamo

By Michael Ratner, President Center for Constitutional Rights

It seems like a long time ago. On November 13, 2001, two months after the 9/11 attacks, President Bush issued Military Order Number One. The order stated that the President could direct the Secretary of Defense of the United States to detain any non-citizen from anywhere in the world. Once the President designated the person, the U.S. could arrest, capture or kidnap the person without complying with extradition laws or worrying about a country’s borders. The only criterion for the President’s designation was that he, the President, deemed the person to be an alleged terrorist. There need be no charges, no trial and the detention could remain secret. Those detained could be held indefinitely. The order went on to say that if such detainees were tried, they would be tried in special courts called military commissions with special rules, rules that many critics, including military lawyers, believed did not guarantee fair trials that complied with the Geneva Conventions and due process. The order made clear that the detainees never had to be tried, but could be jailed forever without any trial. It was only a short time after the issuance of Military Order Number One that the President also asserted the authority to detain citizens as well.

The President claimed that he had the power to issue this order under his constitutional authority as commander-in-chief of the U.S. armed forces and under the laws of war. Underlying this claim of authority was the claim by the administration that the fight against terrorism was a war, albeit a different kind of war than that of one country against another. The President claimed he had unlimited power to fight that “war” by any means he deemed appropriate and could ignore restraints placed on his conduct by international law and treaties.

US officials have stated that many of those held at Guantanamo will be held indefinitely.1 According to Secretary of Defense Rumsfeld, this means until the war against terrorism is over, which could be many years; that is, until “we feel that there are not effective global terrorist networks functioning in the world….”2 Although military commissions may eventually try some of those at Guantanamo, Rumsfeld has said that even if such commissions acquit some detainees, they may still be detained on the base. In other words, the administration considers itself entitled to capture, arrest, and detain people from anywhere in the world, interrogate them, refuse them access to lawyers and family, not charge them or bring them before any courts, not release them even if tried and acquitted, and imprison them indefinitely, year after year.

At the Center for Constitutional Rights (CCR) in New York where I work, we were shocked and dismayed upon reading Military Order Number One. CCR is a civil rights and human rights litigation organization; a non­profit, with progressive politics, that has been deeply involved in civil rights struggles in the U.S. as well as the creative use of litigation and international law to protect fundamental rights. Even prior to the issuance by the President of Military Order Number One we had been concerned by the dangers to liberties and rights that were unfolding in the wake of the attacks of 9/11. We were involved in representing scores of internal Muslim immigrants arrested in the wake of 9/11 and had vehemently opposed the Patriot Act, new legislation passed after 9/11, that was unleashing widespread government spying in the United States.

However, Military Order Number One, and the President’s claim that he had unlimited and unchecked power to combat terrorism was by far the most serious threat to liberty and fundamental human rights in the post 9/11 world. It was of a different character then the granting of more powers to the CIA and FBI. The President, under the military order, was claiming that he had the authority to arrest and detain people forever. This claim to unlimited detention power undercut the key principle underlying democracy: the principle that authority (the President, Prime Minister or King) is under law. This principle goes back at least to the key founding document of the Anglo-American legal tradition, the Magna Carta of 1215. That document, which the King of England was forced to sign, guaranteed that no person was to be imprisoned without a trial and ultimately led to the most important legal protection of the individual freedom: the writ of habeas corpus. Almost every country now has a legal procedure similar to the writ of habeas corpus which gives every person detained the right to test their imprisonment in court. This right is contained in numerous treaties including the International Covenant on Civil and Political Rights.

I recall well November 14, 2001, the day after Military Order Number One was issued. We met at CCR and made the decision that we would represent the first person detained and or tried under this Military Order. We did not make the decision lightly. CCR, in more normal times, was more used to defending the rights of those we generally agreed with, those involved in making progressive social change such as civil rights workers in the South or opponents of the U.S. contra war in Nicaragua in the 1980’s. This was something new. We might well be involved in the representation of those involved in the planning of the 9/11 attacks. We had no idea who would be our first clients. While we understood that every defendant deserves and is entitled to vigorous defense, some of us were not sure those legal defenders should be us. In addition, this was shortly after 9/11 and the anger and hate in the country was running high. We would be setting ourselves up as targets. Despite these concerns we decided to go ahead. (At the time we made this decision and for at almost two years after we began the Guantanamo litigation we did not know that torture was routinely employed in interrogations at Guantanamo and elsewhere. We believed we were litigating a case challenging arbitrary detention.)

This short article is an overall description of our legal efforts, efforts that employed international laws and treaties, efforts which have now engaged well over 500 lawyers and continuing litigation in courts in the U.S. and around the world. As this article is being written Guantanamo is still open and some 500 detainees remain there although almost 400 have been released, sometimes to freedom and sometimes to jails in their own countries. The U S administration has stated that it is no longer sending detainees to Guantanamo. That is an important victory. However, shutting down Guantanamo, if and when that occurs, will not put an end to indefinite detentions and the interrogations under torture that has accompanied it. Stories about such detentions at Bagram prison in Afghanistan and secret CIA detentions facilities around the world confirm that we and other lawyers and human rights activists and will be working for many years to restore fundamental rights.

Early Efforts at CCR

When CCR first decided to challenge indefinite detentions, it faced three major obstacles. First, we needed allies both in terms of the amount of work involved as well as to give any lawsuit legal and political force. Unfortunately, no other U.S. civil rights legal organization was willing to join us. They were frightened of the anger legal challenges on behalf of alleged terrorists would arouse in the country and they also thought the litigation had no chance—legally and politically. A few death penalty lawyers were willing to join us; they were used to suffering the anger of the community for their representation of unpopular clients. So CCR and a few other lawyers had to go it alone. Second, legal precedents were arguably against us. Some earlier U.S. cases could be read as saying that non-citizens detained during war time, particularly if the detention was outside the United States, had no right to go into a U.S court and test their detentions. In other words, it could be argued that U.S. courts had no jurisdiction over detentions outside the U.S. during war. The courts might not even consider a writ of habeas corpus. Moreover, even if courts did synd found they had jurisdiction over writs of habeas corpus filed by detainees held outside the United States, the courts might find that such detainees had no legal rights. The Bush administration would argue that there were precedents indicating that the Geneva Conventions were not enforceable and that the Constitution did not apply to non-citizens held outside the U.S. Third, where would we find our clients? For all we knew they would be kidnapped or captured, detained, taken to some secret prison and never heard from again. So in the first weeks after Military Order Number One we tried to gather our legal team and research the law.

Our break in finding our first client came in January 2002. A newspaper article quoted an Australian lawyer stating that he represented the family of a man named David Hicks and Hicks had been flown to the U.S. Naval Station at Guantanamo Bay, Cuba. The U.S. Naval Station at Guantanamo Bay is held by the United States under a perpetual lease extracted from Cuba in the early 1900’s by the U.S as a condition of giving Cuba its independence in the wake of the Spanish-American war. I quickly called the lawyer in Australia. Over the next few weeks we at CCR agreed to represent the family and file a habeas corpus petition in the U.S. federal court in Washington D.C. on behalf of David Hicks. We did so despite not being able to communicate with David Hicks. He was held incommunicado and we were denied any communication with him. Under U.S. law we were permitted to represent David Hicks by representing his family in Australia although David had no knowledge that we were doing so and had no knowledge of the filing of the case.

Over the next months, more prisoners were taken to Guantanamo. The fact that the government was using Guantanamo for prisoners from all over the world was frightening. The United States was, and apparently still is, acting like an international roving police force without legal limits, kidnapping whom it chooses, ignoring extradition laws and taking those detainees to Guantanamo and other detention facilities. This approach is patently illegal; if those it detains are suspected of crimes, then they ought to be charged and tried as such and not taken to a detention camp and held indefinitely.

The fact that David Hicks, along with others, had been taken to Guantanamo raised special legal problems for the litigation. The U.S. government, despite its perpetual lease over the naval base, considered Guantanamo outside the U.S. and it argued that no court had jurisdiction to hear a case of a non-citizen held outside the United States. CCR had had prior experience with Guantanamo under the first President Bush and under President Clinton.

Earlier Legal Challenges to Detentions at Guantanamo: Haitians & Others

Prior to the 9/11 detentions Guantanamo Bay was used as a detention camp for Haitians and Cubans seeking refuge in the United States, including the world’s first camp for HIV-positive refugees. These detentions set the precedent for the Guantanamo detentions and demonstrate that using the base as a zone outside the law was not the brainchild of the Bush II administration.

In 1990, during the administration of Bush I, President Aristide was overthrown in Haiti and the ensuing bloodbath caused thousands to flee. The United States did not want these Haitian refugees coming to the United States and decided to hold them at Guantanamo.

Apart from its physical location near Haiti in the Caribbean, Guantanamo provided many advantages to the United States. It is remote—off-limits to reporters and relatives of servicemen, and can only be visited with the permission of the United States government. However, it is still close enough to the US for soldiers and officials to shuttle back and forth to the mainland with ease. Most importantly, it has been treated by the US as a law-free zone. That is to say, the Bush I administration, the Clinton administration, and the Bush II administration have all operated as if no court in the world could hear a case brought on behalf of a Guantanamo detainee. In effect, this meant that the US government could treat detainees however it wished; it could beat them, punish them, send them back to their oppressors in Haiti, and there was nothing any court or anyone could do about it.

This claim was soon tested by lawyers from CCR and elsewhere who brought suit in US courts on behalf of refugees in danger of being sent back to Haiti and on behalf of HIV refugees seeking release from the camp. The cases were bitterly contested by the government and they ultimately resulted in conflicting court decisions on whether or not judges could hear claims by people held at Guantanamo. To the extent those courts concluded that the naval base at Guantanamo was akin to United States sovereign territory, they permitted judicial review and determined that the refugees had some constitutional protection.3 To these courts Guantanamo is effectively American territory, much like Puerto Rico or the Canal Zone.

Other courts, however found Guantanamo more akin to a foreign country, and used this theory to deny detainees any right to judicial review or constitutional protection.4 The Supreme Court itself never addressed the status of Guantanamo prior to the current Guantanamo cases.

Legal Challenges: International Legal Challenges: Early Victories

CCR decided to act quickly to challenge the post 9/11 Guantanamo detentions. We did not file our first case in a U.S, court, but at the Inter-American Human Rights Commission of the Organization of American States. Our plans were to take the case into every tribunal we could and put maximum pressure on the U.S. to comply with fundamental human rights law and humanitarian law including the Geneva Conventions. We were aware that U.S. courts were the least likely to give us a sympathetic hearing; favorable rulings from other courts might well influence U.S. courts. Our claims at the Inter-American Human Rights Commission were asserted under international lawf and treaties. We filed a month after the detentions at Guantanamo began and were successful before the Inter-American Human Rights Commission. While the Commission is not a court, its mission is to enforce the principal regional human rights treaty, the American Declaration of the Rights and Duties of Man, the provisions of which protect the right to life, fair trial, due process and freedom from arbitrary detention. In its decision of March 13, 2002, the Commission urged the United States to “take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal.”5 The Commission explained that everyone who is captured by a state must have a legal status, and that it is for a tribunal, not the executive, to determine that status. In strong language the Commission found that:

the detainees remain entirely at the unfettered discretion of the United States government. Absent clarification of the legal status of the detainees, the Commission considers that the rights and protections to which they might be entitled under international or domestic law cannot be said to be the subject of effective legal protection by the state.6

Although the Commission had previously ruled that member states of the Organization of American States are under an “international legal obligation” to comply with its decisions, the United States has refused to do so. The Commission reiterated its order mandating hearings to determine status in July 2002 and held a session on the failure of the United States to implement this ruling. The United States has still not complied, and there is no power in the Commission to compel compliance.

Another challenge to the detentions was filed in the courts of the United Kingdom on behalf of one of the detainees, Ali Abbasi, a British citizen. Although the British Court could not order a remedy for the detentions because the Untied States government was not a party to the lawsuit, it described the detention situation in stark terms: “[a]n apparent contravention of fundamental principles recognized in both jurisdictions [US and UK] and by international law, Mr. Abbasi is at present arbitrarily detained in a “legal black hole.”7 The Court was especially critical of the US government’s claim that there was no court in the United States that could review the indefinite detentions in a territory over which the United States has exclusive control. It hoped that the appellate courts in the United States would find otherwise.

Legal Challenges: The Supreme Court Victory: June 2004

The primary challenge in the U.S. to the Guantanamo detentions was brought by the Center for Constitutional Rights As explained earlier, CCR represented its first Guantanamo detainee, David Hicks, in January 2002. Within a few weeks we were representing additional detainees whose families had contacted us. The writ of habeas corpus was filed in Washington D.C. in February 2002. In the case we argued that the courts could hear the case both because the U.S. had complete jurisdiction and control over Guantanamo and also that any person detained by the U.S. anywhere in the world had the ght to test the legality of his or her detention in court. In other words the court had jurisdiction over the case. Our underlying claim in the case was made under both international law and the constitution. We argued that treaties, customary international law and the constitution prohibited arbitrary detention, required some form of trial and that any trial had to comply with due process. Even if somehow the constitution did not apply to the detainees at Guantanamo, international law including the Geneva Convention and the ICCPR did.

Our initial filings had few lawyers helping us and little public support. In fact, CCR received hate mail by the hundreds accusing us of supporting terrorism. As the case continued, support particularly in the legal community increased. Lawyers seemed to understand what was at stake: the writ of habeas corpus and its fundamental guarantee that the state or the executive could not arbitrarily take one’s freedom. Many compared the case to the shame and illegal detentions of the Japanese in the U.S. during World War II. The most well-known of those Japanese detained during that period, Fred Korematsu, supported the case with a legal brief written on his behalf. By the time we the case went to the Supreme Court, more then two years after it began, a lot more people saw the danger of granting the President unreviewable detention powers.

The case was decided by the Supreme Court on June 28, 2004. The Supreme Court combined the Center’s case on behalf of English and Australian citizens detained in Guantanamo with a later case brought on behalf of Kuwaiti nationals.8 The two lower courts had found in favor of the Government, and held that US courts had no jurisdiction to hear the challenges and thus could not rule on the legality of the detentions. These courts found that US courts could not hear cases brought on behalf of aliens held by the Untied States outside the territory of the United States. They determined that despite the US government’s “complete jurisdiction and control” of Guantanamo Bay, the Naval base was outside the US courts’ authority.

These lower court rulings are quite remarkable. Despite the fact that the US has imprisoned the detainees in a prison camp it totally controls, those prisoners cannot avail themselves of any court in the United States. This would leave their jailers free to hold them for any length of time and under any conditions it chooses, without recourse. There is no check on the government; it can act above the law.

The question the Supreme Court answered on June 28, 2004 is not whether the detentions are legal, but only the preliminary question of whether any court in the United States can hear these cases. In a 6-3 decision, the Supreme Court found that courts in the United States have jurisdiction to consider the legality of the detentions of non-citizens detained at Guantanamo Bay Naval Base. In non-legal language this decision means that the detainees can argue in US courts that they are being unlawfully detained.

The New York Times, quoting legal scholars, called the decision “the most important civil rights case in half a century.” It was indeed a great victory. Until this decision, the Bush administration had argued that no court in the world could consider the legality of the Guantanamo detentions. In terms of US law, it was the first time that the Supreme Court had clearly stated that non-citizens detained by the United States, outside the United States, could use the courts even during a period the administration labels “wartime.”

The decision was also a major political blow to the Bush administration and its claim that it could carry on the so-called war on terror free from judicial oversight and beyond any constitutional or international constraints. It was seen in the US as an important setback to the manner in which the administration is carrying out its war on terror.

The six-judge opinion was written by Justice Stevens and relied on early precedents from England. He invoked the Magna Carta, and quoted approvingly an earlier dissenting opinion, in an analogous executive detention case from 1953:

Executive imprisonment has been considered oppressive and lawless since John at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or the law of the land.9

Despite the importance of the decision, in itself it does not spell freedom for the Guantanamo detainees, it only means that the courthouse door is now open. It is now up to the lower courts to determine whether each individual detention is lawful. We cannot predict how this will develop. The detainees’ lawyers, of whom this author is one, take the position that the next proceedings ought to take place in the federal courts; that the government must come forward and justify each detention; and that each detainee has the right to an attorney and the right to contest the government’s claims. To that end, on July 13, 2004, the Center for Constitutional Rights—assisted by other major law firms— filed scores of new cases on behalf of the detainees in the District Court, asking for immediate access to the detainees by attorneys.

The Bush administration did not expect such an adverse ruling and initially seemed in disarray. However, on July 8, 2004, it announced plans to set up “combatant status review tribunals” at Guantanamo. This is an obvious attempt to forestall federal court review of the cases. The tribunals are supposed to determine whether individual detainees are “enemy combatants.” The hearings will take place at Guantanamo before three handpicked military officers whose decision will not be final, but will go to other Pentagon officials for a final ruling. Detainees will not have the right to an attorney, but will instead be “assisted” by a personal representative who is a military officer, and has no duty of confidentiality. The evidence used against the detainee can include hearsay, including any statements he may have made after two and one-half years of detention and coercive interrogation.

This is hardly a fair system for determining whether someone should be detained indefinitely and incommunicado at Guantanamo. Without detailing all of the tribunals’ deficiencies here, it seems obvious that detainees should have attorneys, that any statements made during their detention must be considered coerced, unreliable, and should be suppressed, and that panels of military officers are not neutral fact-finders. In addition, the definition of enemy combatant for these new tribunals is meaninglessly vague, and does not comply with the recent decision of the Supreme Court in the case of Yaser Hamdi. In that case, the court adopted a narrow definition of the term limited to those fighting against the US in the war in Afghanistan. The Center’s hope is that the detainees at Guantanamo will get a real review of their status and not the sham hearings that have been suggested. In many ways, the Guantanamo litigation is only at its beginning.

Another interesting aspect of the Supreme Court’s ruling was its decision that the detainees can sue not only to test the legality of their detentions, but can also sue regarding the conditions under which they were detained. As we now know, coercive interrogation techniques, amounting to torture were employed by the United States. The ruling in the Guantanamo cases opens the door to lawsuits by detainees to stop the use of such techniques and to try to recover money damages for their ill treatment.

The 2004 victory in the Supreme Court dealt a major blow to the administration’s grab for untrammeled power. The decision, while not detailing the rights a Guantanamo detainee will have, does permit writs of habeas corpus to be filed—this means the detainees will have lawyers and will have their day in court. As I write this, the lower courts are in the midst of enforcing this right and deciding its scope. Unfortunately, as is detailed below, Congress of the United States became involved and arguably cutback substantially on the rights guaranteed by the Supreme Court. As of this writing, litigation to enforce rights for Guantanamo detainees has continued in the federal courts in Washington D.C. That litigation and efforts in Congress to stop it are detailed below.

Phase II: Guantinamo: Developments After the June 2004 Victory

There have been a number of significant developments since the victory in the Supreme Court in June 2004. The remainder of this article will briefly survey these developments. As is well known, documents, memos and photographs have emerged demonstrating that the Bush administration has routinely employed torture in interrogating detainees captured in the “war on terror.” Such torture has occurred at Guantanamo, Bagram in Afghanistan, in detention facilities in Iraq and CIA secret detention facilities around the world. While torture in its grossest form may have stopped at Guantanamo—only because attorneys have, since the Supreme Court victory, visited the base—torture continues to be employed at other U.S. detention centers. Many lawsuits have been filed in efforts to stop the use of torture, numerous governmental investigations have examined the issue, and some lower level military personnel have been tried and convicted. But, impunity for those up the chain of command, in the Pentagon and in the Bush administration continues and so does the torture of detain s. This is a terrible and awful truth, a truth that explains the necessity of prosecutions on courts outside the United States under laws granting such courts universal jurisdiction.

A positive result of the litigation has been the response of the legal community in the U.S. and other countries. As of this writing some 500 attorneys have joined the efforts to represent Guantanamo detainees. They come from major law firms and small law firms; they are Republican and Democrats; and they are Christians, Jews and Muslims. Obtaining rights for the Guantanamo is recognized as crucial not just for the detainees but for the rule of law in the U.S. as well as the world. In some ways, this joining together of this amazing group of attorneys should give us all hope for a world ruled by law and not fiat.

These 500 attorneys, coordinated by CCR, now represent almost every one of the Guantanamo detainees. The most critical aspect of this representation has been these lawyers visits to Guantanamo and the time spent with their clients. While the court cases continue, these visits have at least prevented much of the worst torture and allowed challenges to the manner in which some aspects of the camp are conducted. It is sill not a rosy picture at Guantanamo. Hundreds are still indefinitely detained without trial, suicide attempts are frequent and a hunger strike was essentially stopped by torturing detainees by means of inserting thick feeding tubes into their stomachs through their noses while they were strapped into a specially made detention chair.

As to the legal rights of those detained at Guantanamo, this is still in the courts. The issues concern whether or not the constitution applies at Guantanamo and whether or not the Geneva Conventions, the ICCPR and ‘customary international law can be enforced in US courts. So far, the lower courts have split on these questions, although some answers may be forthcoming from the Supreme Court in the summer of 2006. A looming issue in the cases is the effect of congressional legislation known as the Detainee Treatment Act. Amazingly, the Congress, Democrats and Republicans, passed legislation that could undermine the Supreme Court victory and prevent the Guantanamo cases from continuing in the courts. The legislation, called the Detainee Treatment Act, also purports to allow the use of evidence obtained from torture to be used at the hearings which determine whether or not detainees can continue to be held at Guantanamo. These issues are currently being litigated. At that same time, some detainees are being sent out of Guantanamo, although it is a slow process. Some are sent to their home countries and either released, imprisoned or tried. Others are sent to third countries where they can obtain asylum. This is because their countries of citizenship could very well torture the returned detainees; CCR lawyers and others have won orders preventing the return of detainees to countries where it is more likely then not that they will be tortured.

The Bush administration has said that no new detainees have been sent to Guantanamo since September 2004, a few months after the Supreme Court victory. This is a good thing. But there is also a dark side. Detainees are taken to Bagram or to CIA secret detention facilities. Lawyers do not have access to any of these detention centers nor are the names of the detainees known. These detainees are in the black hole that Guantanamo was. There are no rights, no access to courts and no check on their treatment which surely includes torture.

There are many lessons to be learned from the Guantanamo litigation. First, human rights lawyers must not shy away from difficult or very unpopular cases. Our societies depend on the rule of law and principles of justice and due process. These cases may not always win, but if we do not stand up for those most attacked by the state, then who will? Second, difficult cases can be won even in frightening times. To do so requires work with lawyers and others around the world. CCR was ultimately joined in its efforts not only by U.S. lawyers, but by lawyers from numerous countries all of whom understood the fundamental threat to liberty that Guantanamo represented. Third, it is critical to use every legal, political and organizing niche we can find. This includes U.N. bodies, the OAS and national courts. It includes medical organizations such as Physicians for Human Rights and religious organizations of all denominations. Closing down an abomination like Guantanamo can only happen with organizing, demonstrations, protest and people speaking out. Finally, this struggle continues. Guantanamo has yet to close and other torture centers continue in operation. We must close those. We must hold accountable those officials in the U.S. and elsewhere who authorized and engaged in the indefinite detention, torture and disappearance of thousands of human beings. Accountability and prosecution of the perpetrators of these atrocious human rights violations is a necessity: a necessity if we are ever to have a world free from torture.

1 See e.g., Richard Sisk, “Airport Gun Battle Firefight Erupts As Prisoners Are Flown To Cuba,” New York Daily News, Jan. 11, 2002, p. 27.

2 Katherine Q. Seelye, “Rumsfeld Backs Plan to Hold Captives Even if Acquitted,” New York Times, Mar. 29, 2002, p. A18.

3 Haitian Ctr. Council v. McNary, 969 F.2d 1326 (2d Cir. 1992).

4 Haitian Refugee Ctr. v. Baker, 953 F.2d 1498 (11th Cir. 1992).

5 Id.

6 Decision of the Inter-American Commission on Human Rights of the Organization of American States, Detainees in Guantanamo Bay, Cuba, (Mar. 13, 2002).

7 The Queen on the application of Abbasi & Anor. v. Secretary of State for Foreign and Commonwealth Affairs, [2002] EWCA Civ. 1598

8 Two cases were filed in federal court in Washington D.C. and consolidated for the arguments and the decisions: Rasul v. Bush and Al Odah v. United States, 215 F.Supp. 2d 55 (D.D.C. 2002), affd, 321 F.3d 1134 (D.C. Cir 2003), reversed and remanded, _U.S._ No. 03-334.(June 28, 2004)

9 Justice Steven for the court in Rasul v Bush No. 03-334. (June 28, 2004*) quoting Justice Jackson’s dissent in Shaughnessy v. United States ex rel. Mezei, <>34 5 U. S. 206, 218-219 (1953)