High Court Backs Detainees' Right To Challenge U.S.

ROBERT S. GREENBERGER and JESS BRAVIN

June 29, 2004

The Supreme Court knocked down a pillar of the Bush administration's antiterrorism policy, ruling in two cases that prisoners deemed "enemy combatants" are entitled to contest their detentions in U.S. courts.

The landmark decisions, which said the president had exceeded his powers by jailing the detainees indefinitely without charge, open the way for hundreds of prisoners to file legal challenges.

The court actions also deal a political and practical setback to the Bush administration. It now must develop a plan not only to handle the expected influx of prisoner challenges but also to maintain some secrecy in the process, lest information about terrorist suspects spill out in court.

Many of the prisoners at Guantanamo Bay, Cuba, were seized overseas after the attacks of Sept. 11, 2001, and are believed by the U.S. to be al Qaeda or Taliban fighters. The administration had argued that as "enemy combatants" imprisoned on non-U.S. soil at a naval facility, they were entitled neither to the same due-process rights as civilians nor to the traditional protections of the laws of war. It also has vigorously defended its handling of detainees in the war on terrorism in the face of complaints that prisoners were denied rights and charges that the administration endorsed using torture on some prisoners in Iraq and at Guantanamo.

"The biggest headache for the administration is that every one of the 600 detainees [at Guantanamo] will get a letter from some lawyer saying you have your rights; let me represent you," said Douglas Kmiec, a law professor at Pepperdine University in Malibu, Calif.

Thomas Wilner, a lawyer representing some of the detainees, said he would begin immediately to ask the courts "to very quickly exercise their authority to make U.S. officials abide by the law." Joseph Margulies, an attorney representing two Australian citizens who are Guantanamo prisoners, said he would seek court authority to visit his clients as soon as possible.

Though only a handful of the Guantanamo prisoners were formally represented in the cases before the Supreme Court, Mr. Margulies said the government now has "got to create some process that reaches all of them."

A military spokesman said the Defense Department, which oversees all the "enemy combatants" captured since Sept. 11, was reviewing the rulings and had no comment.

The Guantanamo decision was one of three rulings relating to detainees that was issued yesterday. In a second ruling, the Court said that Yaser Esam Hamdi, an American citizen seized by U.S. allies in Afghanistan in 2001, was entitled to "a meaningful opportunity to contest the factual basis" for his incarceration, though it ruled that the president was authorized to seize and hold him and other prisoners under a congressional resolution passed in the wake of Sept. 11. "A state of war is not a blank check for the President when it comes to the rights of the nation's citizens," Justice Sandra Day O'Connor wrote in the case.

In her opinion, Justice O'Connor invoked the stain on the U.S. record for the World War II detention of Japanese-Americans, mentioning Congress's 1971 repeal of an earlier law that permitted detentions during time of emergency. "Congress was particularly concerned about the possibility that the act could be used to reprise the Japanese internment camps of World War II," she wrote.

In a third ruling, the court sent back to a lower court for more work a case involving the arrest and incarceration of José Padilla. Mr. Padilla, a U.S. citizen, was arrested when he arrived at Chicago's O'Hare International airport from Pakistan in May 2002 for his alleged role in planning to explode a "dirty" radioactive bomb.

While requiring hearings for the Guantanamo prisoners, the Supreme Court gave little guidance as to what those proceedings would look like, leaving unresolved such questions as whether proceedings will be open or closed, whether prisoners will have unrestricted access to lawyers and whether the government will have to disclose its interrogation techniques and other methods of gathering intelligence against prisoners.

"The Supreme Court punted on those hard questions and will leave it to lower federal courts and the military to figure out what kind of process will work," said John Yoo, a former Justice Department official who helped draft the Bush administration's detention and interrogation policies.

Nevertheless, Harold Hongju Koh, incoming dean of Yale Law School, said that yesterday's rulings added up to "a stunning rejection of the government's claim of unfettered executive discretion as the legal way to deal with the war on terrorism."

Not everyone agreed. Justice Department spokesman Mark Corallo noted that the court had upheld the government's power to detain prisoners as enemy combatants, subject to "certain procedural rights to contest their detention." Department officials are reviewing the decisions "to determine how to modify existing processes to satisfy the Court's rulings," he said in a statement.

Mr. Kmiec, who headed the Justice Department's Office of Legal Counsel in the Reagan and first Bush administrations, characterized the Hamdi decision, in particular, as a balanced effort to resolve the inevitable tension between the president's responsibility for the nation's security and citizens' rights to due process of law.

The administration's position on the cases is likely to provide political fodder for the November election. On the campaign trail yesterday, Sen. John Kerry of Massachusetts, the presumed Democratic presidential nominee, said, "I have argued all along with respect to detainees that it is vital to uphold the Constitution of the United States, to respect civil liberties and civil rights even as we protect our country."

The Bush administration had argued that permitting judges to second-guess military decisions would undermine the war on terrorism and allow judicial meddling in an area the Constitution had reserved for the president. Indeed, recognizing the threat to national security posed by the Sept. 11 terrorist attacks, the Supreme Court stopped well short of affording prisoners the full array of rights criminal defendants in civilian prosecutions enjoy.

But in the Guantanamo case, brought by relatives of several prisoners held there, the court rejected the legal theory the government relied upon in deciding to house prisoners at the U.S. naval base: that because the base technically was within Cuban territory, no U.S. court could probe into activities there.

While the decisions are momentous, they mostly reaffirmed some bedrock principles of American law. "What is very deeply ingrained in the American character, and has been for centuries, is that the king, the executive, can't lock people up and throw away the key," said Frank Dunham, a U.S. public defender who represented Mr. Hamdi.

Last week, the Defense Department unveiled draft regulations allowing each Guantanamo prisoner to plead for freedom once each year before a board of military officers. The proposed system bears little resemblance to due process and specifically bars lawyers from assisting the prisoners. But Mr. Yoo, the former Justice official, said the government would probably argue that it could be adjusted to provide sufficient review for the prisoners. The Pentagon "will redo that process and there will be yet more litigation to figure out whether that process is what the court had in mind," said Mr. Yoo, a law professor at the University of California, Berkeley.

Separate from the annual reviews, the government has been planning to prosecute a handful of prisoners before military tribunals for war crimes. Although not specifically addressed in yesterday's ruling, the justices apparently rejected the Bush administration's claim that those tribunals were likewise immune to federal court review.

Lower courts had split on whether the Guantanamo prisoners were entitled to hearings, an issue that turned on the treaty that granted "complete jurisdiction and control" to the U.S. while reserving "ultimate sovereignty" over the territory to Cuba. In Washington, the federal appeals court had agreed with the government that Guantanamo is outside U.S. jurisdiction. But the Supreme Court agreed with the contrary opinion issued in December by Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals, which found that the "practical reality" of more than a century of U.S. control over Guantanamo put it under federal court jurisdiction.

Yesterday's opinions suggested that the administration had miscalculated by refusing to recognize even minimal rights of prisoners of the war on terrorism. In the aftermath of Sept. 11, it had maintained that the Geneva Conventions did not protect al Qaeda fighters because the terrorist network is not a state, and did not apply to the forces of Afghanistan's Taliban regime because they did not wear uniforms or follow other customs of war.

But the court relied on the conventions as an essential factor in understanding the laws of war. In the Hamdi case, Justice O'Connor wrote that "an appropriately authorized and properly constituted military tribunal," such as that provided by the convention and detailed in Army regulations, might meet the court's standard. The administration has refused to convene such hearings, despite the urgings of the treaty's custodian, the International Committee of the Red Cross.

In the Guantanamo case, Justice John Paul Stevens wrote that in addition to filing habeas corpus petitions seeking freedom, the prisoners could sue the government under the Alien Tort Claims Act. That 1789 law gives noncitizens the right to file claims in U.S. courts for violations of treaties and the law of nations.

The justices were far from unanimous yesterday. In the case involving detainees at Guantanamo, the vote was 6-3, with Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas in dissent. In the case of Mr. Hamdi, eight of the nine justices agreed he was entitled to a hearing, but only four signed onto a plurality opinion, with two more concurring in part with that opinion and dissenting in part.

In addition, two justices combined in an unusual alliance. Justice Scalia, one of the court's most conservative members, was joined in a dissent from the plurality opinion by Justice Stevens, one of its most liberal members. They argued that if the government had a case against Mr. Hamdi, it should simply charge him as a criminal, even a traitor, or release him.