Marjorie Cohn | War No Blank Check for Bush

Tuesday, 29 June 2004 00:15 by: Anonymous

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Executive Branch Reined In by Supreme Court    [
New York Times | Reaffirming the Rule of Law    [
Washington Post | Supreme Rebuke    [

    Supreme Court: War No Blank Check for Bush
    Marjorie Cohn
    t r u t h o u t | Perspective

    Wednesday 30 June 2004

    In a direct repudiation of the Bush administration's position that the President is answerable to no one, the Supreme Court held the Guant a1namo prisoners and U.S. citizen Yaser Hamdi are entitled to contest their detention in federal courts. The Court, however, punted in Jose Padilla's case, holding that he filed his case against the wrong person in the wrong court.

    For more than two years, the government has held 600 foreign-born men and boys prisoner at Guant a1namo Bay, Cuba. No charges have been filed and they have not been allowed access to any court to challenge their confinement. Bush has maintained that, under his war-making power, he could hold prisoners captured in the "war on terror" incommunicado indefinitely if he decided they were "enemy combatants."

    Bush ruled in 2002 that he could suspend the protections of the Geneva Conventions. His order likely led to the torture that has recently come to light at Guant a1namo, as well as in Afghanistan and Iraq. (See my editorial, "Bush's 'Humane' Torture Policy Hits a Speed Bump.")

    Prisoners released from Guant a1namo report being tortured. They describe assaults, prolonged shackling in uncomfortable positions, sexual abuse and threats with dogs. There are reports of prisoners being pepper sprayed in the face until they vomited, fingers being poked into their eyes, and their heads being forced into the toilet pan and flushed. Dozens of videotapes of American guards brutally attacking prisoners are reportedly catalogued and stored at the Guant a1namo prison. Thirty-two suicides took place in an 18-month period.

    As evidence of torture leaked out of Abu Ghraib prison during the last few months, a Guant a1namo-Iraq torture connection was revealed. General Geoffrey Miller, implicated in setting torture policies in Iraq, had been transferred from Guant a1namo to Abu Ghraib last fall specifically to institute the same harsh interrogation procedures he had put in place at Guant a1namo.

    Bush's torturers had plied their trade in secret, accountable to no court or public scrutiny. Guant a1namo was, according to a Red Cross spokeswoman, "a legal black hole."

    The Bush administration denied these men their day in court, saying that Guant a1namo Bay is not a U.S. territory, and thus, U.S. courts are not available to them. This position was premised on the absurd notion that Cuba is actually sovereign over Guant a1namo Bay, even though the United States exercises exclusive jurisdiction over it.

    Amnesty International noted: "It is deeply ironic that the USA is violating fundamental rights on Cuban soil, and relying on the fact that it is on Cuban soil to keep the US courts from examining its conduct."

    The government's lawyer asserted during oral argument in a Ninth Circuit case that the Guant a1namo prisoners would have no judicial recourse even if they were claiming the government subjected them to torture or summary execution. The court was deeply disturbed by this notion.

    When the first 20 shackled prisoners arrived at Guant a1namo on Jan. 11, 2002, Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, warned: "These are people who would gnaw through hydraulic lines at the back of a C-17 to bring it down." But last week, The New York Times reported that the value of the information possessed by the alleged terrorists was greatly exaggerated.

    Nevertheless, these men have languished in tiny cells under inhuman conditions. With no judicial accountability, military interrogators could torture them with impunity. They could all be held until the "war on terror" ends - that is, for the rest of their lives, solely on Bush's say-so.

    Fortunately, the Supreme Court's ruling in Rasul v. Bush has changed that. It held that the Guant a1namo prisoners have the right to go to federal court to challenge their confinement. The United States exercises "complete jurisdiction and control" over the Guant a1namo Bay base, wrote Justice Stevens. "Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts' authority" under the habeas corpus statute.

    The Court's opinion, however, is a bittersweet ruling. Although it provides the Guant a1namo prisoners access to the courts, it implies that courts could uphold the President's "enemy combatant" designation in certain cases, resulting in lifetime confinement even without a criminal conviction. The Court tragically ignores the explicit prohibition on indefinite detention enshrined in international law.

    In Hamdi v. Rumsfeld, the Supreme Court ruled that due process demands a U.S. citizen held in the United States as an enemy combatant is entitled to a meaningful opportunity to contest the factual basis for his detention before a neutral decision maker. That includes the right to counsel. Yaser Hamdi's detention might be lawful, however, if a court determined that the government correctly classified him as an "enemy combatant."

    Hamdi's father, who filed the lawsuit on his son's behalf, said the 20-year-old was traveling on his own for the first time, and because of his lack of experience, he was trapped in Afghanistan once the U.S. military campaign began. Hamdi, who went to Afghanistan to do relief work, was there less than two months before September 11, 2001. The government filed a document filled with vague generalities to support Bush's designation of Hamdi as an enemy combatant.

    Justice O'Connor wrote for the Court: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." In a direct slap at Bush, O'Connor noted, "even the war power [of the President] does not remove constitutional limitations safeguarding essential liberties." O' Connor echoed a theme she has raised in prior Court decisions, which is particularly relevant today: "It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

    But, instead of holding that a President cannot hold an American citizen indefinitely, the Court set forth a balancing test for determining whether the President's designation of a U.S. citizen as an enemy combatant will be upheld. Henceforth, a court reviewing a claim will weigh the private interest of the detained citizen against the governmental interest in determining whether to sustain an enemy combatant classification.

    O'Connor did, however, make clear that detentions of U.S. citizens must be limited to the Afghanistan context; they are not authorized for the broader "war on terrorism." She acknowledged, "history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not pose that sort of threat."

    Justice Souter wrote a concurring opinion, noting that the USA Patriot Act authorizes the detention of alien terrorists for no more than seven days in the absence of criminal charges or deportation proceedings. Congress, therefore, would require the government to clearly justify its detention of an American citizen held on home soil incommunicado.

    Curiously, the right-wing Justice Scalia, in his separate opinion joined by the most liberal Justice Stevens, would not permit the indefinite detention of an American citizen in Hamdi's present situation. They would require the government to prefer criminal charges or release the individual, unless Congress were to suspend the writ of habeas corpus.

    "The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal," according to Scalia.

    Only Justice Thomas held out for blind deference to the President: "This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision."

    That the Rasul and Hamdi decisions are a mixed blessing is illustrated by the reactions to them. Hamdi's lawyer said he was "delighted" by the decision. The American Civil Liberties Union called the rulings "a huge defeat for the government." Likewise, the American-Arab Anti-Discrimination Committee said the decisions represent "a major victory in upholding due process rights ... a great victory in protecting our core values as Americans." In striking contrast, the conservative Wall Street Journal called them "a modest but important victory for the Presidency." Its editorial celebrated the Court's affirmation of "the authority of the Commander-in-Chief to detain enemy combatants, including U.S. citizens."

    Finally, the Supreme Court, in a 5-4 nod to the Bush administration, elevated procedure over substantial rights, and declined to rule on Jose Padilla's case. Ironically, whereas the Guant a1namo prisoners can now file habeas corpus petitions in any federal court, U.S. citizen Jose Padilla's petition was thrown out because it was filed in New York rather than South Carolina.

    After he was arrested in Chicago, Padilla was taken to New York to answer a grand jury material witness warrant. While Padilla was in New York, Bush ordered Donald Rumsfeld to designate Padilla an "enemy combatant."

    Rumsfeld transferred Padilla to military custody and sent him to a naval brig in South Carolina. Meanwhile, Padilla filed a habeas corpus petition in the New York Court, naming Rumsfeld as a defendant. Five of the nine justices ruled that Padilla had to re-file his petition in South Carolina and name the commander of the military brig as a defendant.

    The four dissenters decried Padilla's "secret transfer" to South Carolina, which prevented his lawyer from filing in South Carolina. Once he was transferred, Padilla was denied access to his attorney until February 11, 2004. The dissent's author, Justice Stevens, wrote: "At stake in this case is nothing less than the essence of a free society." Accusing the majority of using a procedural technicality to deny Padilla fundamental rights, Stevens concluded his opinion with reference to torture:

"Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."

    Tragically, Jose Padilla remains incarcerated in limbo indefinitely until the lengthy procedure to secure the rights guaranteed him by the Constitution works its way once again through the judicial system.

    George W. Bush has used the crimes against humanity committed on September 11, 2001, to launch a "war on terrorism." Under the guise of his new "war," Bush rounded up more than 1000 men in the United States solely for being Arab or Muslim. At Guant a1namo, Bush has kept 600 men and boys locked up, with the intention of keeping them there incommunicado until his "war on terror" is over. In Iraq, Bush invaded a sovereign country that posed no threat to the United States, killed thousands of its people and allowed nearly 1000 of our people to be killed. In spite of the absence of any evidence linking Saddam Hussein to the September 11 attacks, Bush claims his war on Iraq is a centerpiece of his "war on terror."

    The Supreme Court has bought into Bush's claim that we are fighting a "war on terror." It has declined to tell Bush he cannot hold "enemy combatants" indefinitely. But, most significantly, the Court has told Bush his power is not absolute. The 600 prisoners at Guant a1namo and Yaser Hamdi finally have the right to go into court and claim their innocence.

    This is indeed a victory for the rule of law.

    This email address is being protected from spambots. You need JavaScript enabled to view it., is a contributing editor to t r u t h o u t, a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.


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    Executive Branch Reined In by Supreme Court
    By David Von Drehle
    Washington Post

    Tuesday 29 June 2004

    The Supreme Court's complicated holdings in three cases involving detainees from the battle against terrorism may not result in any prisoners going free - the justices yesterday left that for lower courts or tribunals to decide.

    But the web of opinions, concurrences and dissents were decisive on this: They represent a nearly unanimous repudiation of the Bush administration's sweeping claims to power over those captives.

    Liberal or conservative mattered little in the ultimate outcome. The court roundly rejected the president's assertion that, in time of war, he can order the "potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing," to quote the court's opinion in the case of foreign prisoners held at the U.S. base in Guant a1namo Bay, Cuba. In fact, the administration's claim to such power over U.S. citizens produced an opinion signed by perhaps the court's most conservative justice, Antonin Scalia, and possibly its most liberal, John Paul Stevens.

    "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive," Scalia wrote, with Stevens's support.

    In this way, the court's rejection of the executive-power arguments in the cases might be seen as part of a reemergence of the other branches of government from the shadow of the Sept. 11, 2001, terrorist attacks. As the justices suggested several times in their opinions, emergency measures that might have been within the president's power in the days and weeks just after 9/11 now must be reconciled with American norms of due process. In that sense, the cases struck a chord with congressional hearings into the rules for prisoner interrogations at U.S. prisons in Iraq and Afghanistan.

    Given that the administration has said its war on terrorism might stretch over generations, Justice Sandra Day O'Connor wrote, the "indefinite detention" of a prisoner "could last for the rest of his life." And that, the court said, is too long to do without the basics of due process.

    Only Justice Clarence Thomas embraced the administration's positions without reservation, referring in a dissenting opinion to "the breadth of the President's authority to detain enemy combatants, an authority that includes making virtually conclusive factual findings" that the Supreme Court is powerless to "second-guess."

    Each case before the court presented slightly different facts - there was a case asking whether foreign prisoners captured in the terrorism war had a right in U.S. courts to challenge their imprisonment, a case asking whether a U.S. citizen could be held as an "enemy combatant" without a hearing of some kind, and a case challenging the short-circuiting of a criminal case against accused terrorist Jose Padilla, a U.S. citizen, by placing him in military custody as an enemy combatant.

    But the justices used the cases to wrestle with one of the core dilemmas of free society: How can strength be balanced with liberty? Or, put another way, what are the limits on a leader's power in a crisis?

    "The defining characteristic of American constitutional government is its constant tension between security and liberty," Justice David H. Souter wrote.

    And so the opinions drew heavily on some of the oldest and weightiest precedents in the book. Starting with King John's promise in Magna Carta, signed in 1215, that "no free man should be imprisoned . . . save by the judgment of his peers or by the law of the land," the justices traced the limits on executive power through English common law, on through the Federalist Papers and down a long a line of precedents forged in some of the darkest hours of the nation, including the Civil War and World War II.

    "We have long since made clear that a state of war is not a blank check for the President when it come to the rights of the Nation's citizens," O'Connor wrote in a painstakingly nuanced opinion ordering a hearing for U.S. citizen Yaser Esam Hamdi, who was taken captive in Afghanistan.

    The justices left unresolved exactly how tightly they intend to try to rein in the president. All of them paid deference to the heavy responsibility of the commander in chief and his duty to keep the country secure. Even as they reaffirmed the bedrock principle of checks and balances, they left Bush and his successors substantial room to operate.

    They admonished lower courts to tread carefully on national security matters. They resolved the Padilla case - which could have been the most provocative - on narrow jurisdictional grounds. And they stopped far short of ruling that citizens who are designated enemy combatants must be charged as criminals and given the full access to the courts that would entail.

    This moderation ultimately left the court's liberal wing unsatisfied. Stevens, joined by Justices Souter, Ruth Bader Ginsburg and Stephen G. Breyer, argued passionately that the Padilla case should have been dealt with head on. "At stake in this case is nothing less than the essence of a free society. . . . Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber," he wrote.

    Yet if, in the end, the justices could not agree on exactly how far the president can go, they were clear that he had already gone too far.

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    Reaffirming the Rule of Law
    New York Times | Editorial

    Tuesday 29 June 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 Guant a1namo, 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 Guant a1namo case was brought by 14 of the more than 600 detainees being held at the American naval base at Guant a1namo 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 Guant a1namo is not part of the United States. For more than 100 years, the court observed, Guant a1namo 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 Guant a1namo 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 Guant a1namo case, the court is unclear about whether its ruling applies only to detainees held in Guant a1namo 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 Guant a1namo 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."

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    Supreme Rebuke
    Washington Post | Editorial

    Tuesday 29 June 2004

    Since the outset of the war on terrorism, the Bush administration, across a wide range of issues, has had a simple message for the federal judiciary: Trust us and don't interfere. Yesterday, in a pair of much-awaited rulings, the court delivered its response. First, the justices declared that U.S. citizens designated as enemy fighters are entitled to a "fair opportunity" to challenge their detentions and "unquestionably [have] the right to access to counsel" in doing so. Then the justices held that federal courts have jurisdiction to hear challenges to the detentions of noncitizens held at Guantanamo Bay, Cuba. Trust, even during wartime, has limits.

    The most important decision of the day came in the case of Yaser Esam Hamdi, the Louisiana-born Saudi man who has been held in a military brig for the past two years after being captured in Afghanistan. The decision is more historic still for transcending the court's frequent ideological divide. Eight justices rejected the government's contention that Mr. Hamdi could be locked up indefinitely, incommunicado, on the strength of a two-page, hearsay affidavit and without any opportunity to respond to the government's allegations.

    The justices did not agree on the proper resolution of the case: A four-member plurality led by Justice Sandra Day O'Connor held - as we have argued - that an American who fights with the enemy may be detained as an enemy fighter but must have a meaningful opportunity to contest the designation. Justices David H. Souter and Ruth Bader Ginsburg argued that Congress's authorization of the use of force did not include the authority to detain Americans. Justices Antonin Scalia and John Paul Stevens argued that Mr. Hamdi was entitled either to be tried or freed. Only Justice Clarence Thomas would have affirmed the government's position.

    Consequently, the case not only guarantees that Mr. Hamdi will get to tell the courts his side of the story but also sends a powerful message that Americans cannot just disappear at the hands of their government. Even during wartime, the government must be held to account - albeit not necessarily in a full-fledged criminal trial - before an American can be locked up. That's important not just for Mr. Hamdi but for liberty generally. And it means that the other American held as an enemy combatant, Jose Padilla, will at last get a hearing as well. The court dismissed Mr. Padilla's case, finding that it had been filed in the wrong court. But the decision in Hamdi means that in any renewed litigation, more than the government's say-so will be needed to keep Mr. Padilla behind bars.

    The court's skepticism about the government's position extended even to that case where precedent was most strongly on the administration's side. The government had a powerful argument that Guant a1namo lies outside the court's jurisdiction, an argument with which we agreed. Yet the administration's willful failure for so long to construct at Guant a1namo a review process in which the public could have confidence makes the court's decision to intervene something of a self-inflicted wound for the administration.

    It isn't clear what, in practice, the decision will mean. If the result is to spur the administration to improve review and inject a measure of outside oversight, it could prove constructive. But there are dangers as well. Holding that jurisdiction exists to consider these cases is not the same as saying they have legal merit, so the decision is far from a promise of meaningful review of Guant a1namo detentions, and it could prove quite disruptive. The decision's logic seems to imply that any detainee held anywhere by U.S. forces - even someone such as Saddam Hussein or Khalid Sheik Mohammed - could have access to U.S. courts. However irresponsible the executive branch has been, the judiciary is ill-positioned to manage every overseas detention.

    What should be clear, however, is that the judiciary will not sit still for assertions of unbridled executive power. As the war on terrorism progresses, the administration will need - at long last - to submit to the oversight and transparency it has so assiduously resisted.

Last modified on Monday, 21 April 2008 14:36