6/30/2004
The Terror Cases: Are There Now More Questions than Answers?
By Jason Rogers
On June 28, 2004, the Supreme Court decided Rumsfeld v. Padilla, Rasul v. Bush, and Hamdi v. Rumsfeld, cases that all involved U.S. detainment of suspected terrorists. When the opinions were initially reported, various news agencies hailed them as a substantial victory for the Bush administration, but by later in the day, had reversed their position and were describing the decisions as a setback to the war on terror. Parties on opposite sides of the issues at stake sent equally confusing messages, as both claimed a win. Those that support the right of any American citizen to seek legal redress, like The Rutherford Institute as well as the American Civil Liberties Union and the Center for Constitutional Rights, declared the cases a victory for the rule of law, while the chief counsel for the Washington Legal Foundation, which filed an amicus brief on behalf of the government in Hamdi, contended the cases reinforce the government’s detainment powers in wartime situations. Even Attorney General John Ashcroft greeted the Hamdi ruling with praise. "Detention of enemy combatants prevents them from rejoining the enemy and continuing to fight against America and its allies, and has long been upheld by our nation's courts, regardless of the citizenship of the enemy combatant," Ashcroft said. But he also seemed to express reservation in separate comments. "The Supreme Court accorded to terrorists, in a variety of cases this week, a number of additional rights," he assessed. The American Center for Law and Justice, which filed three amicus briefs for the government, echoed the Attorney General’s conflicted reaction, citing the Court for their affirmation of the right to declare terrorism suspects “enemy combatants,” but calling the Court’s limits on Presidential power “troubling.” While the Supreme Court did issue key rulings regarding detainees’ ability to challenge their detentions, they left open many related matters, obfuscating the effect of their holdings.
In Padilla, a majority of the Supreme Court held that the federal district court where the petition was brought did not have jurisdiction to hear the case. First, the court found that the appropriate defendant is Commander Marr, Padilla’s immediate custodian. Second, the Court ruled that Padilla should have filed his petition in South Carolina, where he was being held, rather than New York. As a result, The Court dismissed the case on a procedural issue without discussing the merits of the case. While the Court maintained that proper procedures must be followed, it held that Padilla may renew his petition in the appropriate forum and against the appropriate party.
In the matter of Rasul, the Court held that foreign detainees imprisoned at the U.S. military base in Guantanamo Bay, Cuba, cannot be denied a hearing to challenge the basis for their detention. The American legal tradition recognizes a writ of habeas corpus allowing citizens as well as aliens held in the United States to challenge their incarceration as unlawful.
In holding that the Guantanamo detainees, non-citizens detained outside the country, have this right as well, the Court per Justice Stevens found that a unique situation exists in Guantanamo Bay. While the base is located on land leased from Cuba, according to the terms of that lease the base is under U.S. jurisdiction. Although the importance of this special situation is speculative, Justice Scalia pointed out in his dissent that the Court’s decision may open the doors to all persons detained by the United States, not just those in Guantanamo Bay, to challenge their imprisonment.
Justice Scalia also argued in his dissent that since the detainees are not located in a federal district, they may apparently sue in any of the federal judicial districts. Presently, it is hard to reconcile this result with the Court’s decision in Padilla, where jurisdiction was lacking in part because Padilla brought his suit in New York instead of South Carolina where he was physically detained.
The Court’s splintered decision in Hamdi provides modest guidance for future detainment cases. At least five of the Justices (O’Connor, Rehnquist, Kennedy, Breyer and Thomas) held that Congress granted authority to the President to detain Hamdi and others as “enemy combatants.” But what is an appropriate basis for detainment? The Court provided a test for these cases. The government must present evidence that a detainee is an “enemy combatant” and provide the detainee with a fair opportunity to rebut the factual basis for the classification before a neutral decision maker. Given the extreme deference courts give to the government in matters of foreign policy and war, the government’s presumption in favor of “enemy combatant” status may prove unassailable in actual practice. Concerned with what evidence may be offered, the Court again showed deference to the government by stating that perhaps even hearsay may be allowed to support the government’s classification of a person as an “enemy combatant.”
More questions arise from the Court’s underlying rationale for the Hamdi decision. The plurality opinion written by Justice O’Connor found that due process required the government to provide Hamdi with a hearing. This begs the fundamental question, exactly how much process is due in detainment situations such as Hamdi and Padilla? The Court tried to strike a balance between an individual’s due process rights and the government’s strong interest in national security, but did not declare that the process due an individual would be the same in all situations.
Furthermore, the plurality stated that Hamdi “unquestionably has the right to access to counsel,” but did not state when that right would attach. The opinion distinguishes his detainment from standard criminal incarcerations, claiming that his detainment is non-punitive and merely to prevent him from taking part in additional violent actions against the United States. The Sixth Amendment, as it has been interpreted by the Court, guarantees the right to counsel in criminal cases where the deprivation of liberty is at issue, finding that one must be criminally charged in order for the right to counsel to kick in. If his detainment truly is non-criminal, then where does Hamdi’s right to counsel originate? The Due Process Clause? And when would he gain this right? The plurality opinion left these issues unresolved, merely stating that by the time the case was decided Hamdi had gained access to a lawyer.
And what about Jose Padilla? What will happen when he re-files his petition in South Carolina? As an American citizen detained within the country, he should be guaranteed at a minimum the rights Hamdi has—a fair opportunity before a neutral decision maker and the right to access to counsel. The Court in Hamdi took great pains to point out that Hamdi was captured in Afghanistan by military forces. Padilla was arrested after disembarking a commercial flight at O’Hare Airport in Chicago. How important is the location where an “enemy combatant” is apprehended in the Court’s due process analysis? Is the location of arrest important enough to declare that Padilla is entitled to more process than Hamdi?
Also, if Hamdi “unquestionably” should have access to counsel, do the Guantanamo detainees also have that right? None are American citizens, but they do have the right to challenge their respective detentions. Would it offend due process to deny them access to an attorney in subsequent hearings? The government may still try to prevent the detainees from talking to attorneys claiming interference with the stated purpose of acquiring information to prevent future terrorist acts. Immediately after the cases came down, a number of attorneys declared their intention to contact and represent the detainees. Will contact with an attorney be allowed, or must attorneys still act through relatives of the detainees?
The Supreme Court’s decisions in these three cases represent a middle-of-the-road approach. The decisions try to preserve individual liberties without burdening the government’s compelling interest in national security. The balance between the two is a precarious one, and in their attempt to achieve this symmetry the Court left many questions unanswered. Only time and likely more litigation will tell the full outcome and effect of these cases.
Related links:
Rutherford Institute President Commends U.S. Supreme Court Decision to Limit President’s Power to Detain ‘Enemy Combatants’
2003 Year-in-Review Case Report
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