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. 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.