Supreme Court Deals Bush Major Defeat on Detainees
a major defeat for President George W. Bush, the U.S. Supreme Court
Monday ruled that detainees captured in Bush's "war on terrorism"
and detained at a U.S. base in Cuba or in U.S. territory have the
right to challenge their detention in federal court.
In an 8-1 decision, the justices found that U.S. citizens detained
as "enemy combatants" were entitled to full due-process rights under
the Constitution, including the right to an attorney. In another
6-3 decision, the Court ruled that foreign "enemy combatants" held
at the U.S. naval base in Guantanamo Bay, Cuba, have the right to
go to court to argue that they should never have been detained.
The rulings amounted to an almost total rebuff of the administration's
assertions that the president, as commander-in-chief, had the right
to indefinitely detain individuals whom it designated "enemy combatants"
without charges and without access to counsel or the right to review
their status before an independent court
historic rulings are a strong repudiation of the administration's
argument that its actions in the war on terrorism are beyond the
rule of law and unreviewable by American courts," said Steve Shapiro,
legal director of the American
Civil Liberties Union (ACLU).
administration designed its war on terrorism in an effort to insulate
its actions from judicial review, but the Supreme Court today clearly
and overwhelmingly rejected that strategy," he added.
The Department of Justice, which represented the administration,
said it would comment on the rulings only after a full review of
the opinions issued by the Court in what were four separate cases.
The Court's rulings come at a time when Bush was already on the
defensive over the controversy caused by the abuse of detainees
at Abu Ghraib prison in Iraq.
A series of internal administration memos that have come to light
as a result of the scandal show that political appointees in the
Justice Department, the Pentagon and the White House had argued
that the president enjoyed virtually unlimited powers not only to
detain suspected "enemy combatants" without affording them the full
protection of the Geneva Conventions, but also to interrogate them
in ways that could violate U.S. laws prohibiting torture, as well
as international treaties ratified by the U.S. Congress, such as
the Geneva Conventions and the UN Convention Against Torture (CAT).
These memos have drawn outrage from human rights groups and much
of the U.S. legal community, prominent members of which have charged
that such sweeping assertions of the president's wartime powers
are both unprecedented and patently unconstitutional.
The controversy began claiming victims when the Justice Department's
solicitor-general, Ted Olson, announced his resignation last week
reportedly after complaining that he had not been informed about
the memos. At the same time, Jack Goldsmith, the head of the Department's
prestigious Office of Legal Counsel (OLC), which prepared one of
the controversial memos, abruptly resigned at the same time.
The Court's repudiation of the administration's powers to indefinitely
detain U.S. and foreign "enemy combatants" without review by independent
courts is likely to further weaken the more-ideological legal forces
within the administration.
While none of Monday's cases involved the treatment of detainees
at Abu Ghraib, a number of analysts said that the scandal may very
well have affected the sharp tone of some of the decisions.
In all, the Court issued rulings in three cases – two that dealt
with the rights of U.S. detainees held as "enemy combatants," and
one consolidated case that dealt with those of foreign detainees
being held at Guantanamo.
In the case brought by an attorney on behalf of Yaser Esam Hamdi,
a Louisiana-born Saudi who reportedly surrendered to the Northern
Alliance in Afghanistan, was subsequently transferred to U.S. custody
as a suspected Taliban member, and has been detained in a military
brig in South Carolina with no access to his family, the Court ruled
8-1 that he had the right to both an attorney and to challenge his
detention in court.
The majority opinion, written by Justice Sandra Day O'Connor, conceded
that Congress gave the president the power to detain citizens in
the war under "very limited circumstances," but went on to assert
that: "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 decision-maker."
The Court "made clear," she wrote, "that a state of war is not a
blank check for the president when it comes to the rights of the
recognising Mr. Hamdi's right to challenge his detention in court
with a lawyer, the Court reaffirmed that the independent judiciary
remains a very real check on presidential power – even over issues
of national security," said Deborah Pearlstein, director of the
U.S. Law and Security program at Human
Rights First (HRF).
In a second decision involving the fate of Jose Padilla, a U.S.
citizen who was arrested at Chicago's main airport two years ago
on suspicion of plotting with al-Qaeda to detonate a radioactive
device and also held in South Carolina, a majority of five justices
sent the case back to a lower tribunal on a technicality. They said
the case should have been filed in South Carolina, rather than in
In light of the Hamdi decision, however, legal experts said that
Padilla's case has probably been strengthened not only because,
as a citizen, he will be entitled to the same rights as Hamdi, but
also because the majority ruling indicated discomfort with whether
Padilla could be considered an "enemy combatant" at all given that
he was arrested far from any battlefield. They said the government
will probably have to either charge him with a crime or release
In the Guantanamo case, which was brought by detainees from Kuwait,
Australia, and Britain, the Court ruled 6-3 that foreigners seized
as potential terrorists in Afghanistan and Pakistan and held at
the U.S. base in Cuba may have access to the federal courts to challenge
Under the Geneva Conventions, prisoners of war are supposed to be
guaranteed access to an independent tribunal to contest their detention,
but the administration insisted that Taliban and al-Qaeda suspects
would not receive formal given prisoner-of-war (POW) status.
Writing for the majority, however, Justice John Paul Stevens asserted
that "Aliens at the base, like American citizens, are entitled to
invoke the federal courts' authority" to determine whether they
are wrongly held.
Amnesty International applauded the decision and called for the
administration to "quickly afford all detainees held by the U.S.
this fundamental right."
Reviewing the more than 100-year history of U.S. control over the
base, the majority also rebutted the administration's argument that
Guantanamo was not subject to the jurisdiction of the U.S. federal
The majority's ruling is potentially far-reaching for at least two
reasons. According to a recent investigative article by the New
York Times, most of the more than 600 detainees still held at
Guantanamo were low-level Taliban soldiers or even innocent bystanders
who were caught up in military operations and have no intelligence
value. Scores of detainees have already been repatriated, but Monday's
decision could result in the government speeding up the process
for the remaining detainees.
The ruling could also used as the basis for new lawsuits by family
members of other prisoners who are detained as suspected terrorists
in some two dozen other overseas facilities under U.S. control,
including in Iraq, Afghanistan, Diego Garcia, Thailand, and aboard
at least two U.S. ships in the Indian Ocean, according to a recent
Stevens tied the decision very much to the specific situation of
Guantanamo," said Shapiro, "the door has been opened to potential
claims by detainees being held elsewhere."
habeas corpus case is directed at whoever has actual, as well as
legal custody, of the detainee, he added, noting that the transfer
of sovereignty to the interim government in Iraq Monday could affect
custody of detainees who have been held by U.S. forces there to
Lobe is Inter Press Service's correspondent in Washington, DC.
© 2004 Inter Press Service