Supreme Court Deals Bush Major Defeat on Detainees

by Jim Lobe

In 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

"Today's 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).

"The 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 nation's citizens."

"By 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 New York.

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 him.

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 their captivity.

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 courts.

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 HRF report.

"While 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."

A 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 date.

June 30, 2004

Jim Lobe is Inter Press Service's correspondent in Washington, DC.

Copyright © 2004 Inter Press Service

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