The Nine [130]
Stevens served in the Pacific for four years on the staff of Admiral Chester Nimitz and won a bronze star. He did intelligence work, helping to break Japanese codes, and in later years often spoke of his pride in his service. His intense patriotism prompted the most out-of-character vote of his judicial career, when he sided with the conservatives in the famous flag-burning case of 1989. In his dissent in that case, Stevens said burning the flag was not protected by the First Amendment, because “it is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations.”
Stevens did not presume that his own service as an intelligence officer in World War II gave him the wisdom to second-guess the Bush officials’ conduct of intelligence operations at Guantánamo. But his military experience—combined with his quiet self-confidence—made him harder to intimidate on the subject of military necessity. Many of the darkest moments in the history of the Court took place when the justices deferred too much to the purported expertise of the executive branch on matters of national security. During and after World War I, the Court upheld several dubious prosecutions of political dissidents on the ground that their advocacy put the nation in danger.
Most notoriously, during World War II the justices upheld the exclusion of American citizens of Japanese ancestry from the West Coast in Korematsu v. United States. (Fred Korematsu himself submitted an amicus brief in support of Rasul.) Stevens knew that history and was determined not to replay it. And the disclosures that took place while the cases were pending—about Abu Ghraib and the torture memo—made the credibility of the administration’s representations to the Court much more suspect. Suddenly, it was the Bush administration itself, not the plaintiffs’ leftist lawyers, that looked outside the mainstream of legal and political opinion. For a Court majority determined never to stray too far from what the public believed, that change was crucial.
So, it turned out, was the preposterousness of the administration’s key argument in Rasul. Olson had maintained that the navy base in Guantánamo was really Cuban soil and to allow a lawsuit there was inviting litigation on a foreign battlefield. But as Stevens put it in his opinion, “By the express terms of its agreements with Cuba, the United States exercises ‘complete jurisdiction and control’ over the Guantánamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses.” The entire reason that the military took the detainees to such a remote outpost was because the base offered total freedom from outside interference. Allowing lawyers to visit prisoners in Guantánamo and letting them conduct litigation offered no risk at all of escape or disruption—something that could not be said for many prisons within the United States. Even Scalia’s dissent, which was joined by Rehnquist and Thomas, could not work up much passion on the issue.
The reason for Scalia’s relative reticence became apparent in Hamdi, which was handed down on the same day as Rasul. There the repudiation of Bush’s position was even more complete, and the author of the majority opinion was O’Connor, that reliable vector for the views of most Americans. Her opinion was scathing, a testament to her growing