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High Court Says Detainees Have Right to Hearing

Times Staff Writer

The Supreme Court on Monday ruled that the Constitution gives all people held under U.S. control a right to their day in court, rejecting President Bush’s claim that the war on terrorism gives him, as commander in chief, the unchecked power to imprison “enemy combatants.”

“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,” Justice Sandra Day O’Connor wrote. Even in wartime, the Constitution “assuredly envisions a role for all three branches [of government] when individual liberties are at stake.”

U.S. soldiers may capture enemy fighters on the battlefield and U.S. agents may seize suspected terrorists at home, but that is not the end of the matter, the justices said. Detainees still have a right to challenge the basis for holding them.

“The great writ of habeas corpus allows the judicial branch to play a necessary role in maintaining this delicate balance [between security and liberty], serving as an important check on the executive’s power in the realm of detentions,” O’Connor said.

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In the high court’s first review of the president’s constitutional powers in the war on terrorism, the administration won on one key point. Five justices agreed that in the wake of the Sept. 11 attacks, Congress had given the president special powers to capture and hold terrorists and their allies -- including U.S. citizens who fight for the enemy.

But they also said all these detainees, including about 600 foreigners currently held at the U.S. naval base at Guantanamo Bay, Cuba, have a right to challenge the government’s case against them.

Civil libertarians hailed Monday’s decisions for upholding the principles of due process of law, and Pentagon officials scrambled to accommodate what was expected to be a flood of demands for hearings by detainees who said they were not fighting for the Taliban or Al Qaeda.

Although some legal experts said they were not surprised that the court insisted on protecting the rights of American citizens, they expressed delight that a solid majority of the court said even noncitizens captured abroad were entitled to a fair hearing.

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“The United States can no longer hold detainees in a ‘rights-free zone,’ ” said James Fellner of Human Rights Watch. “They can now have their day in court.” The Bush administration’s contention that it could hold foreigners at Guantanamo without regard for the protections of the Geneva Convention or the standards of international law, Fellner noted, has been roundly criticized abroad.

Despite the broad setback, the White House and Justice Department said Monday that they were pleased the court had upheld the president’s authority to detain “enemy combatants” as part of the war on terror.

In one ruling, Rasul vs. Bush, the court said 6 to 3 that the hundreds who were captured in Afghanistan and elsewhere and held at Guantanamo Bay have a right to challenge their imprisonment in an American court. In a second, Hamdi vs. Rumsfeld, the court ruled 8 to 1 that a U.S. citizen who was captured in Afghanistan and held in a military brig in South Carolina has a right to a lawyer and to a hearing before a judge.

In a third case, citing a technical error, the court failed to decide whether American Jose Padilla, arrested in Chicago, can be held by the military.

Despite their disagreements on the details, justices across the ideological spectrum said the principles of due process of law and respect for civil liberties cannot be swept aside by the president or his military commanders, even in wartime.

“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” branch, wrote conservative Justice Antonin Scalia in an opinion that also spoke for liberal Justice John Paul Stevens. “If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this court.”

Scalia and Stevens agreed in the case of Yaser Esam Hamdi, a Louisiana-born man of Saudi parentage, that Hamdi should be freed unless the government intended to charge him with treason.

Justices David H. Souter and Ruth Bader Ginsburg also said Hamdi should be freed because the government did not have the authority to arrest and hold U.S. citizens without filing criminal charges.

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Four others, led by O’Connor and joined by Chief Justice William H. Rehnquist, Anthony M. Kennedy and Stephen G. Breyer, said the government may hold U.S. citizens such as Hamdi who are captured as “battlefield detainees.” Nonetheless, they must be given a lawyer and a hearing before a judge, the court said.

The Constitution says the government may not deprive a person of liberty without due process of law, and “Hamdi has received no process,” O’Connor said.

Only Justice Clarence Thomas agreed with the administration’s view that the president can order the arrest and the indefinite detention of Americans who he believes to be terrorists or enemy fighters.

In the Guantanamo case, the court said the hundreds of people being held there have a right to challenge their imprisonment before a judge. Administration lawyers had maintained these “enemy aliens” captured in wartime were outside the jurisdiction of the U.S. courts, in part because they were in Cuba.

Disagreeing, the high court said their location doesn’t always matter. As long as the detainees are under the exclusive control of U.S. authorities, judges have the authority “to determine the legality of the executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.”

The court did not say how this would work. The opinions do not suggest the detainees are entitled to a full-blown trial in a federal court. Instead, they are likely to be given a hearing before a military judge at Guantanamo. However, a federal judge is likely to oversee the process to ensure its basic fairness.

In the case of Padilla, who is being held on suspicion of plotting with Al Qaeda to explode a radioactive “dirty” bomb, the court failed to decide whether an American citizen arrested within the United States can be held indefinitely by the military. In a 5-4 ruling, the court threw out the case and told his lawyer to start over in a different court.

Arrested at O’Hare airport, authorities took Padilla first to New York and then to a military brig in South Carolina. In Monday’s decision, the court said Padilla’s lawyers erred by filing a suit in New York rather than in South Carolina.

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In the Hamdi case, five justices agreed that in the wake of Sept. 11, Congress had given the president special powers to arrest and hold U.S. citizens who are fighting for the enemy. They cited the resolution passed by Congress that, in effect, authorized the invasion of Afghanistan. It said the president may “use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks.”

The court said this broad authorization allowed Bush to order the military to “detain, for the duration of hostilities, individuals legitimately determined to be Taliban combatants who engaged in armed conflict with the United States.”

It was not clear whether the president’s power to order indefinite detention applies only to citizens who were captured on foreign battlefields fighting for the enemy -- such as Hamdi -- or, more broadly, to Americans who were arrested in the United States and accused of being allies of America’s enemies.

The answer may have to await further rulings. In Monday’s decision, Breyer joined O’Connor’s opinion that said the military may hold “battlefield detainees.” However, he dissented in the case of Padilla. Scalia also said that in the case of an American citizen, the government may hold him if it charged him with treason.

Their opinions suggest a majority of the justices do not believe the government may indefinitely hold Americans arrested within the United States.

But White House officials saw the ruling as endorsing their position on holding enemy combatants.

“The president’s most solemn obligation is to defend the American people, and we’re pleased that the Supreme Court upheld the president’s authority to detain enemy combatants, including citizens, for the duration of the conflict. The administration is committed to fashioning a process to review enemy combatant determinations in a way that addresses the court’s concerns and permits the president to continue to exercise his constitutional responsibility as commander in chief to protect the nation in times of war,” said White House spokeswoman Claire Buchan.

Sen. John F. Kerry of Massachusetts, the presumed Democratic presidential nominee, applauded Monday’s rulings as upholding American values. He also faulted the administration for not giving accused terrorists a lawyer and a hearing.

“With respect to detainees, it is vital to uphold the Constitution of the United States, to respect civil liberties and civil rights even as we protect our country,” Kerry said. “I would have wished this administration could have done ... what was in keeping with our values and the spirit of our country.”


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