Supreme Court Affirms Detainees' Right to Use Courts

[David Farber <dave () farber net>]

Supreme Court Affirms Detainees' Right to Use Courts

June 28, 2004
 By DAVID STOUT





WASHINGTON, June 28 - The Supreme Court ruled today that
people being held by the United States as enemy combatants
can challenge their detention in American courts - the
court's most important statement in decades on the balance
between personal liberties and national security.

The justices declared their findings in three rulings, two
of them involving American citizens and the other
addressing the status of foreigners being held at the
Guantánamo Bay Naval Base in Cuba. Taken together, they
were a significant setback for the Bush administration's
approach to the campaign against terrorism that began on
Sept. 11, 2001.

"Due process demands that a citizen held in the United
States as an enemy combatant be given a meaningful
opportunity to contest the factual basis for that detention
before a neutral decisionmaker," an 8-to-1 majority held in
the case of Yaser Esam Hamdi, a Saudi-born United States
citizen seized in Afghanistan in 2001. Only Justice
Clarence Thomas dissented from the basic outlines of the
decision.

Justice Sandra Day O'Connor wrote that the campaign against
terrorism notwithstanding, "a state of war is not a blank
check for the president when it comes to the rights of the
nation's citizens."

In the Guantánamo case, the court ruled, 6 to 3, that
federal courts have the jurisdiction to consider challenges
to the custody of foreigners. The finding repudiated a
central argument of the administration.

"Aliens at the base, like American citizens, are entitled
to invoke the federal courts' authority," Justice John Paul
Stevens wrote for the majority. "United States courts have
traditionally been open to nonresident aliens."

The dissenters were Chief Justice William H. Rehnquist and
Justices Thomas and Antonin Scalia.

And in the other case involving an American citizen, José
Padilla, the court ruled on what at first glance was a
technical issue: that Mr. Padilla filed his habeas corpus
petition in the wrong court. A 5-to-4 majority said he
should have filed in federal court in South Carolina, since
he has been held in a brig in Charleston, rather than in
the Southern District of New York.

The majority said, too, that the proper target for his case
is not Defense Secretary Donald H. Rumsfeld but, rather,
Cmdr. Melanie Marr, who is in charge of the brig. "This
rule serves the important purpose of prevent forum shopping
by habeas petitioners," the majority held.

Chief Justice Rehnquist wrote the opinion, joined by
Justices O'Connor, Scalia, Thomas and Anthony M. Kennedy.
Justices John Paul Stevens wrote an emotional dissent that
was joined by Justices David H. Souter, Ruth Bader Ginsburg
and Stephen G. Breyer.

Justice Stevens wrote that there was ample precedent for
finding that the Southern District of New York, where a
material-witness warrant was first issued for Mr. Padilla,
was the proper court to take up the case, and he lamented
that the majority seemed to sidestep the main issues.

"At stake in this case is nothing less than the essence of
a free society," Justice Stevens wrote. "For if this nation
is to remain true to the ideals symbolized by its flag, it
must not wield the tools of tyrants even to resist an
assault by the forces of tyranny."

The American Civil Liberties Union called the rulings
historic and said they embodied "a strong repudiation of
the administration's arguments that its actions in the war
on terrorism are beyond the rule of law and unreviewable by
American courts."

Representative Jerrold Nadler of New York, ranking Democrat
on the House Judiciary Committee's subcommittee on the
Constitution, "reaffirms that even in a time of war, the
president does not have the authority to act as a tyrant."

Although the cases of Mr. Hamdi, Mr. Padilla and the
Guantánamo detainees all arose from the terror attacks of
Sept. 11, 2001, and weighed national security against
personal liberty, they were considerably different from one
another in circumstances.

The Guantánamo case involved foreigners: about 600 men of
various nationalities seized in Afghanistan and Pakistan
during operations against the Taliban; 16 of the detainees,
all maintaining their innocence, filed suit. Their case,
Rasul v. Bush, No. 03-334, named for the detainee Shafiq
Rasul, was argued before the justices on April 20.

Besides the basic issue in their case, there was a
secondary but still vital question involving the status of
Guantánamo Bay itself.

Since a 1950 Supreme Court case has been interpreted to
mean that enemy combatants held outside the United States
have no right to habeas corpus, the detainees had to show
through their lawyers that Guantánamo Bay is functionally,
if not formally, part of the United States.

On the one hand, a long-ago treaty with Cuba said that it
retained sovereignty over the base. On the other hand, the
treaty also said that the United States exercised
jurisdiction and control.

In any event, the United States Court of Appeals for the
District of Columbia Circuit ruled last year that the
federal courts lacked jurisdiction to hear habeas corpus
petitions from the detainees - a position that the Supreme
Court rejected today.

The majority noted that the 1950 case cited by the
administration involved German citizens captured by United
States forces in China, then tried and convicted of war
crimes by an American military commission in Nanking, and
finally imprisoned in occupied Germany.

In contrast, the Supreme Court majority noted today, the
Guantánamo detainees are not only held in territory
arguably under United States control but they also have not
had their guilt or innocence determined, unlike the Germans
of a half-century ago, and have been held without formal
charges.

Justice Scalia's dissent, joined by Chief Justice Rehnquist
and Justice Thomas, was as emotional in tone as was Justice
Stevens's dissent in the other direction in the Padilla
case. The majority's holding in the Guantánamo case was so
reckless as to be "breathtaking," Justice Scalia asserted.

Justice Scalia went on to declare that the majority's
position needlessly upset settled law, and was particularly
harmful in a time of war. "The commander in chief and his
subordinates had every reason to expect that the internment
of combatants at Guantánamo Bay would not have the
consequence of bringing the cumbersome machinery of our
domestic courts into military affairs," he wrote.

As for the Hamdi and Padilla cases, although they both
involve American citizens, the similarities largely end
there. For one, Mr. Hamdi was captured in Afghanistan,
where the Bush administration contends he was fighting for
the Taliban. (His father asserted that he had gone to
Afghanistan to do relief work.) Mr. Padilla was arrested at
O'Hare Airport in Chicago.

Their cases, Hamdi v. Rumsfeld, No. 03-6696, and Rumsfeld
v. Padilla, No. 03-1027, were argued together on April 28,
having reached the Supreme Court by opposite paths.

Mr. Hamdi's lawyers were appealing a ruling by the United
States Court of Appeals for the Fourth Circuit, in
Richmond. That court held last year that Mr. Hamdi was
entitled to challenge his detention by petitioning for a
writ of habeas corpus. But the Fourth Circuit dismissed his
petition after holding that the government had provided
ample justification for classifying him an enemy combatant.


In the Padilla case, the government brought the appeal to
the Supreme Court in hope of overturning a ruling by the
United States Court of Appeals for the Second Circuit, in
New York City. Citing a law passed by Congress in 1971 to
prohibit the detention of citizens without explicit
authorization by Congress, the Second Circuit found that
the president was without authority to detain Mr. Padilla,
despite the Congressional resolution authorizing military
force after the Sept. 11 attacks.

http://www.nytimes.com/2004/06/28/politics/28CND-SCOT.html? 
ex=1089448575&ei=1&en=ae94e339d123ab21


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