The New York Times
June 29, 2004
Part of the "new normal" that the Bush administration ushered in after Sept. 11 was a radically broader view of the government's power to detain people. The administration claimed the right to hold foreign terrorism suspects in an indefinite legal limbo in Guantánamo, and to designate American citizens as "enemy combatants" and hold them for years without access to lawyers. Yesterday, the Supreme Court delivered a stinging rebuke to these policies. In a pair of landmark decisions, the court made it clear that even during the war on terror, the government must adhere to the rule of law.
The Guantánamo case was brought by 14 of the more than 600 detainees being held at the American naval base at Guantánamo Bay, Cuba. The detainees insist that they did not engage in combat or terrorism against the United States, but were wrongly picked up in the fog of war in Afghanistan. The Bush administration responded that, guilty or innocent, they have no right to be heard. In its view, non-citizens held outside the United States cannot turn to American courts to challenge their confinement. A federal district court and an appeals court both agreed, and dismissed the lawsuit.
The Supreme Court reversed that decision on a 6-to-3 vote. The court rightly looked beyond the legal fiction that the government relied on, that the base in Guantánamo is not part of the United States. For more than 100 years, the court observed, Guantánamo has been under America's "complete jurisdiction and control," and it will remain so for the foreseeable future. As a legal matter, there is no difference between being held in Guantánamo and being held in the United States. The court also noted that habeas corpus, a venerable doctrine that allows prisoners to challenge their confinement, applies not to the prisoner, but to the one doing the imprisoning — in this case, the Defense Department. By this logic, the location where the prisoner is being held should not matter.
The court did not rule on the detainees' actual claims of being wrongly confined. But it held that they have a right to have the claims heard in federal court, and it sent the case back down to the district court with instructions to start considering them. The ruling reaffirms a core principle of American law: anyone behind bars has a right to challenge that imprisonment in court.
In a second case, the court ruled for Yaser Esam Hamdi, an American citizen who has been designated an enemy combatant. The government says Mr. Hamdi was captured by the Northern Alliance in Afghanistan in 2001, and he has been held for more than two years in naval brigs in Virginia and South Carolina. The government contended that Mr. Hamdi could be held indefinitely without access to a lawyer, although it eventually relented and allowed him to consult with counsel.
The Supreme Court's decision is fractured, but Justice Sandra Day O'Connor spoke for a majority when she wrote that the conditions of Mr. Hamdi's confinement were unacceptable. At the least, the court held, a citizen designated as an enemy combatant must be given access to a lawyer, told the basis on which he received the designation and accorded a fair opportunity to challenge it before a neutral decision maker.
Yesterday's cases leave important questions unanswered. In the Guantánamo case, the court is unclear about whether its ruling applies only to detainees held in Guantánamo because it is effectively American territory, or whether it extends to any non-citizen held outside the United States. Given the court's analysis of the purpose and history of habeas corpus law, however, the decision should apply to detainees both in Guantánamo and elsewhere.
In the enemy combatant case, the court is not specific about what kind of hearing Mr. Hamdi should get. Justice O'Connor's opinion could be read as allowing him to be brought before a military tribunal. But even the Bush administration, when it announced that it would be using military tribunals, made it clear that American citizens would not be tried before them. Putting American citizens before military tribunals would be bad politics, as the administration realized. It would also substantially diminish the level of due process Americans can expect when they are accused of wrongdoing. It is important that when Mr. Hamdi presents his case, he be allowed to do so in a federal district court.
During World War II, the Supreme Court handed down one of its most infamous decisions, affirming the government's power to put Japanese-Americans in internment camps. Fortunately, this court appears to be mindful of the mistakes of the past. "It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested," Justice O'Connor observed yesterday, "and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."