SCOTUS Hears Detainee Cases

[Timber Loftis]

If you can detain people indefinately without charging them with a crime, why bother with EVER charging ANYONE with a crime? Just arrest ("detain") those you don't like. Great -- judges can go home reeeeal early.

If the government's actions here are upheld, I swear I'm going to start hammering out my own plan of attack against this country.
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April 28, 2004
Justices Hear Challenges to Post-9/11 Presidential Powers
By DAVID STOUT

WASHINGTON, April 28 — The lawyer for an American citizen held in a Navy brig since being captured in Afghanistan more than two years ago told the Supreme Court today that his client's treatment was contrary to America's law and heritage.

"We have never authorized detention of a citizen in this country without giving him an opportunity to be heard, to say, `Hey, I am an innocent person,' " the lawyer, Frank W. Dunham Jr., told the justices on behalf of Yaser Esam Hamdi, a Louisiana-born Saudi-American, who the federal government says was fighting on behalf of the Taliban.

But Deputy Solicitor General Paul D. Clement said nothing in Mr. Hamdi's treatment is unusual or illogical. "It has been well established and long established that the government has the authority to hold both unlawful enemy combatants and lawful prisoners of war captured on the battlefield," Mr. Clement said. "No principle of the law or logic requires the United States to release an individual from detention so that he can rejoin the battle."

The perspectives of Mr. Clement and Mr. Dunham were so different that they might have been talking about different cases.

Mr. Dunham complained that his client had not even been able to proclaim his innocence. "He hasn't been able to look at the facts that have been alleged against him and give any kind of an explanation as to his side of the story, which may well turn out to be true," the lawyer said.

Mr. Clement seemed to suggest a bit later that that was not really the point. "It has never been the case that prisoners of war are entitled to counsel to challenge their capture or their detention," he said.

If a prisoner of war is charged with a specific crime, then the Geneva Convention specifies that he should have counsel, Mr. Clement went on. But if a prisoner is simply held in preventive detention, he is not allowed counsel, he said.

The court heard arguments not only in Mr. Hamdi's case but in a companion case involving José Padilla, another American citizen being held in a Navy brig without having been charged. The cases are widely acknowledged to be of historic importance, involving the limits of presidential power and the balance between individual freedom and national security.

What the justices decide in Hamdi v. Rumsfeld and Rumsfeld v. Padilla will be of huge importance to President Bush and his top advisers. Perhaps more important, the court's rulings in these two cases could affect American presidents and American law for many decades.

The cases arise from the Bush administration's response to the terror attacks of Sept. 11, 2001. Part of that response has been the open-ended detention of people whom the administration has labeled "enemy combatants."

President Bush and his aides have argued that they are operating within the Constitution and, indeed, doing what they have to to fulfill their duty to protect the country. Those who disagree have argued that Mr. Bush and his aides are shredding the very Constitution they have sworn to uphold.

The dimensions of the issues at hand, and the uncharted legal terrain on which they were argued, were illustrated in exchanges between Mr. Dunham and members of the court.

"The allegation here is that — as I understand it, is that Mr. Hamdi is an enemy combatant, whatever that means," Mr. Dunham said. "We don't find it defined in any case, we don't find it defined in any statute, and it hasn't been defined by regulation or by anything that's been filed in this case."

"Well," Justice Antonin Scalia broke in, "it's an English word. It means somebody who is combating."

"That's correct," Mr. Dunham conceded.

"I assume it means someone who is, has taken up arms against the armed forces of the United States," Justice Scalia said. "I mean, do we have to quibble about that word?"

"No," Mr. Dunham replied. "I mean in its ordinary sense, Your Honor, you're absolutely right."

Surely, Justice Scalia went on, Mr. Dunham was not suggesting that "every captured enemy in a war" has a right to a habeas corpus proceeding in which he could challenge the legality of his detention, as distinct from his guilt or innocence.

"Or would you?" Justice Scalia pressed. "I don't know."

"No," Mr. Dunham said. "I wouldn't allow every person captured to go through a habeas proceeding. But there's a different legal status of a U.S. citizen from an enemy alien captured on a battlefield."

Justice Anthony M. Kennedy wondered aloud how jurists were supposed to handle a case like the one presented today, both legally and factually. "Are we supposed to send a Gulfstream over with 10 people who witnessed the capture?" the justice asked. "I mean, how does this work?"

Mr. Dunham said a Gulfstream executive jet was really not necessary with modern technology. "We have fax machines, we have phones that have pictures, you can get depositions," he said.

"When it comes to U.S. citizens, you don't simply detain them," Mr. Dunham said at another point. "You prosecute them, like they did with John Walker Lindh." Mr. Lindh, a Californian, was captured while fighting for the Taliban and pleaded guilty to violating an antiterrorism law. He was sentenced to 20 years in prison.

The cases argued today have attracted worldwide attention, as demonstrated in a statement issued by Amnesty International. "We believe the president must ensure national security and capture enemies that would harm us," Alexandra Arriaga, director of government relations for Amnesty International USA said today. "But the United States and the world must be guided by the rule of law. Every person deserves a fair trial to determine his or her guilt or innocence, and to be held accountable for crimes."

The central figure in the other case heard today, José Padilla, was born in Brooklyn, moved to Chicago, where he became a gang member and committed numerous street crimes, then traveled in the Middle East where, federal authorities say, he associated and plotted with Al Qaeda terrorists. Two years ago, he was arrested at O'Hare International Airport in Chicago on suspicion of plotting with terrorists to detonate a radioactive device in the United States.

Neither Mr. Hamdi nor Mr. Padilla has been charged with a crime.

Mr. Hamdi and Mr. Padilla are being held in the same Navy brig in Charleston, S.C. Neither was allowed to see a lawyer for two years. Later, they were given limited access to lawyers, although the government insisted, in effect, that it was doing the prisoners a favor rather than granting them their rights.

The legal questions in the two cases are similar, but the lower-court histories are not.

The question in the Hamdi case is whether the military can keep a United States citizen, seized overseas during military operations, in indefinite custody without his being able to challenge his designation as an enemy combatant. The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., concluding that the government had provided enough evidence, said yes.

The question in the Padilla case is whether the military can keep a United States citizen, seized within the United States, in indefinite custody without his being able to challenge his enemy-combatant label. The United States Court of Appeals for the Second Circuit, in New York, said no, holding that Congress had not authorized such detentions and that the president lacked the authority to impose it by himself.

Several former United States attorneys general filed a brief on behalf of the administration, asserting that in times of war "the Constitution is not designed to maximize the government's efficiency to achieve victory — even at the cost of `collateral damage' that would be unacceptable in the domestic realm."

But the American Bar Association, in a brief on behalf of Mr. Hamdi, said that "where the deprivation of liberty is complete, ongoing, potentially without end, and based entirely upon a secret record, the need for counsel could not be more compelling . . . . The federal habeas corpus statutes grant Hamdi, like any other person held by the government, the right to present his side of the story."

Last week, the court heard another case involving post-Sept. 11 measures. The question was whether federal courts have jurisdiction over the open-ended detention of noncitizens at the United States Navy Base at Guantanamo Bay, Cuba. The United States Court of Appeals for the District of Columbia Circuit has said no.

The justices are expected to decide all three cases before their summer break.