Human Rights Groups Claim Victory in Supreme Court Detainee Decision

Jim Lobe
OneWorld US
Tue., Jun. 29, 2004

WASHINGTON, D.C., Jun 29 (OneWorld) - U.S. and international human rights groups have hailed Monday's Supreme Court's rulings that U.S. citizens and foreign nationals detained as "enemy combatants" by U.S. forces have the right to challenge their detention in federal court.

The rulings, which came in two cases, marked a major setback to claims by the Bush administration that the courts should not be able to interfere in the commander-in-chief's prosecution of its "war on terror."

"Amnesty International welcomes the affirmation by the Court that all prisoners have the right to a judicial review of their detention," said the director of Amnesty's U.S. section (AIUSA), William Schulz. "The administration ought to quickly afford all detainees held by the U.S. this fundamental right."

"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 Steven Shapiro, the legal director of the American Civil Liberties Union. "The administration designed its war on terrorism in an effort to insulate its actions from judicial review. The Supreme Court today clearly and overwhelmingly rejected that strategy."

The cases involved appeals on behalf of two U.S. citizens who are being held at a Navy brig in South Carolina as "enemy combatants" and another consolidated case on behalf of a group of Kuwaiti, Australian, and British detainees who have been held at the U.S. Navy base at Guantanamo Bay, Cuba.

In the case concerning Yaser Esam Hamdi, a Louisiana-born Saudi binational being held without access to his family or an attorney in South Carolina after surrendering to U.S.-backed forces in Afghanistan more than two years ago, the Court ruled by an 8-1 margin that he could not be denied his constitutional rights, including the right to counsel and to challenge his detention in federal court.

The majority opinion, written by Justice Sandra Day O'Connor, conceded that Congress had given the president the power to detain citizens in the war, albeit under "very limited circumstances," but went on to assert that, "(d)ue 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."

"...(A) state of war is not a blank check for the president when it comes to the rights of the nation's citizens," she wrote.

"This decision is as clear a statement as one could hope that the President does not have unlimited power in wartime," said Deborah Pearlstein, director of the U.S. Law and Security program at Human Rights First (HRF), formerly known as the Lawyers Committee for Human Rights. "By recognizing 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 the President's power over issues of national security."

In a second decision involving another U.S. citizen, Jose Padilla, who was arrested at Chicago's O'Hare airport two years ago on suspicion of plotting with al Qaeda to detonate a radioactive device, a majority of five justices sent he case back to a lower court on a technicality. Over the strong objections of the four other justices, the majority said the case should have been filed in South Carolina, where Padilla is held, rather than in New York City.

In light of O'Connor's strong language in the Hamdi decision, however, legal experts said Padilla is likely to get at the very least a ruling similar to Hamdi's, although Shapiro suggested that a court may require the government to either charge him with a crime or release him. The fact that he was detained so far from the battlefield will make it more difficult for the government to persuade a court that he should be designated as an "enemy combatant," Shapiro said.

Finally, in the Guantanamo case, the Court ruled 6-3 that foreign nationals seized in Afghanistan and Pakistan and held at the base in Cuba have the right to challenge their designation as "enemy combatants" in a federal court.

Writing for the majority, Justice John Paul Stevens asserted that "(a)liens at the base, like American citizens, are entitled to invoke the federal courts' authority to determine whether they are wrongly held" under habeas corpus proceedings.

In addition, Stevens strongly rejected the administration's position that the Guantanamo base was effectively beyond the federal courts' jurisdiction. He said the U.S. exercised "exclusive jurisdiction and control" over the base.

He went on to argue that nothing in the law "excludes aliens detained in military custody outside the United States" from seeking hearings in the federal courts, suggesting that detainees currently being held under U.S. control in some two dozen foreign locations, including Afghanistan, Diego Garcia, Thailand, at least two U.S. naval vessels in the Indian Ocean, and possibly even in Iraq, may also be able to appeal to the courts for hearings on whether their detention is justified.

"The United States can no longer hold detainees in a 'rights-free zone,'" said Jamie Fellner, director of the U.S. program at Human Rights Watch. "They can now have their day in court."

"After the revelations of torture and abuse at Abu Ghraib and elsewhere, it seems the Supreme Court was in no mood to give the administration a free hand," he added.

The Center for Constitutional Rights (CCR) also praised the Guantanamo decision. Barbara Olshansky, CCR's deputy legal director, noted that the "Justices met head-on the Executive's unprecedented challenge to this country's founding democratic principles. Their holding -- that potentially indefinite incarceration on the sole authority of Executive officers, without charge and without judicial supervision, is incompatible with the most elemental concept of the rule of law - will stand as one of the hallmark decision for centuries to come."

AIUSA's Schulz was not quite so enthusiastic, suggesting that the Court's upholding of the right to detain individuals as "enemy combatants," even under very limited circumstances, was somewhat disappointing. "This decision is a potential turning point for the defense of human rights post-9/11, but it will only matter if prisoners held without charge or trial are freed."

According to a recent New York Times report, the great majority of the more than 600 detainees who are still being held at Guantanamo were low-level members of the Taliban or even noncombatant civilians who were swept up by U.S.-backed forces during hostilities. The ACLU's Shapiro said he hoped that the process by which the Pentagon has repatriated some detainees over recent months will now be broadened and accelerated.