In a fascinating constellation of cases, facts and judicial predilections, the Supreme Court on June 28 handed down three major decisions affecting the most basic rights of citizen and non-citizen detainees in the war on terror.
In the case of the 600 Guantanamo detainees, 14 plaintiffs represented by the Center for Constitutional Rights established their right to appear in U.S. courts to challenge their detentions. The ruling was 6-3, with William Rehnquist, Antonin Scalia and Clarence Thomas dissenting. Writing for the majority, Justice John Paul Stevens rejected the government’s argument that U.S. courts have no authority over what goes on in Guantanamo because it is located on Cuban soil. Instead the majority found that the Guantanamo base is under exclusive U.S. control. Now, after being held for more than two years, all of the foreign detainees have the right to force the United States to disclose why they are being held.
Regarding the Bush administration’s experiment with designating U.S. citizens “enemy combatants,” the Supreme Court gave Yasser Hamdi substantive rights but took a dodge on Jose Padilla. In the Padilla case, the Court said Donald Rumsfeld was not Padilla’s actual custodian and so was not the proper party to sue. Then the justices declined to address the legality of his detention, forcing Padilla to begin his habeas corpus suit over again.
In the case of Yasser Hamdi, supposedly caught on the battlefield, the Court issued a split decision, but basically approved the Commander-in-Chief’s right to designate U.S. citizens enemy combatants. Justices Sandra O’Connor, Anthony Kennedy, Stephen Breyer, and Rehnquist ruled for a plurality that Hamdi is entitled to have a court review the legality of
his detention (habeas corpus). The dominant opinion requires the government to show “some evidence” of his fighting on behalf of the Taliban or al Qaeda, but even second-hand, hearsay evidence is allowable. Hamdi is entitled to rebut the government’s case against him, and to have the assistance of counsel, but he is not entitled to be presumed innocent.
Thus, the majority accepted a new category of citizens designated enemy combatants who are entitled to a lesser standard of justice.
Justices David Souter and Ruth Ginsburg criticized the government for holding Hamdi incommunicado for 21 months without access to counsel or even the right to send and receive correspondence from his family, a right guaranteed by the Geneva conventions. Justice Scalia wrote an amazing 27-page history of the writ of habeas corpus and forthrightly
demanded that Hamdi either be charged with treason (à la John Walker Lindh) or be released. He was joined by Justice John Paul Stevens.
Justice Thomas, writing in the Hamdi case, completely accepted the government’s argument that giving detainees access to courts and lawyers would “destroy the intelligence gathering function” of such detentions.
How did the torture scandal affect the votes of The Supremes? The revelations came only days after Solicitor General Paul
Clement’s assurances that the United States does not engage in torture. In the Guantanamo case, this led the majority to
implicitly overturn their own precedent prohibiting non-citizens from using U.S. courts to pursue habeas corpus relief. After revelations of 37 deaths at the hands of U.S. forces in Iraq and Afghanistan, the majority of the Supreme Court was no longer willing to accept the government’s legal fictions about its lack of control in foreign territories.