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Supreme Court Decision: Detainees and Enemy Combatant Rights

Richard Samp
Washington Legal Foundation
Monday, June 28, 2004; 3:00 PM

The Supreme Court ruled today in two cases regarding anti-terrorism legislation and the rights of prisoners and "enemy combatants." The court decided that suspected terrorists must be allowed access to the American justice system to contest their detention.

Washington Legal Foundation chief legal councel Richard Samp discussed the Supreme Court's decisions and the rights of detainees.


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The Washington Legal Forum is a public interest law and policy center dedicated to "advocating free-enterprise principles, responsible government, property rights, a strong national security and defense, and balanced civil and criminal justice system." The forum filed a brief in the Hamdi v. Rumsfeld case arguing on behalf of the U.S. government.

The transcript follows

. Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

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Richard Samp: On the whole, the Executive Branch came out unscathed from today's three enemy combatant decisions. Nothing the Supreme Court said will handcuff the military in its efforts to fight the war on terrorism. The Court, in the Rasul decision, opened the courthouse door to nonresident aliens, but I doubt that those cases will ever get very far, given the extreme deference that the courts are likely to show to the military in this area. The government won the key question in the Hamdi case: whether U.S. citizens who are found fighting for an enemy force can be detained outside of the criminal justice system. The Executive Branch agreed all along that U.S. citizens can contest their detention in habeas proceedings, so much of what the Court said in that regard was in line with the Administration's position. While the Court gave Hamdi a greater opportunity for review than the Administration would have liked, the bottom line is that on remand the courts have been ordered to give a great deal of deference to the military's findings.

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Arlington, Va.: The Supreme Court seemed to imply that Congress authorized the President extra-ordinary powers after Sep 11, but that these powers were not unlimited. In the case where the powers authorized by Congress are deemed to be in contradiction to the Constitution, does this not present a contradiction? Thanks.

Richard Samp: There are very few foreign policy actions that are beyond the power of the President and Congress when acting together, so the Court did not appear to be addressing just what those limits might be. Rather, the Court seemed to accept the idea that Congress has the right to limit the President's powers as Commander-in-Chief, something that all recent Administrations dispute at least to some degree. The Court held that Congress' post-Sept. 11 Authorization for the Use of Military Force authorized the President to detain without trial American enemy combatants captured on a battlefield -- hardly an unprecedented authorization. It remains to be seen how the Court will rule in the future on the issue of whether the AUMF authorizes the detention of Americans (such as Padilla) caught in the U.S.

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East Atlantic Beach, New York: Would the court have decided differently had it not found Guantanamo to be in the jurisdiction of the United States?

Or, less hypothetically, will this ruling allow the United States to transfer the prisoners to, say, our military bases in territorties outside of our jurisdiction to prevent the application of habaeus corpus there?

Richard Samp: I suspect that the Court will apply Rasul to all aliens being held anywhere in the world. While the Court included some language that focused on Guantanamo Bay's special status, the tenor of its decision suggests that it believes that the courts have authority to review detentions whereever they occur.

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Boston, Mass.: I think the court got it exactly right. The President can detain citizens and foreign combatants if a US judge deems that there is enough evidence and they pose a threat to security. How can you claim the administration needs no check on their power to detain citizens especially after the torture memo, signed by now Federal Judge Bigby, which carried the weight of a binding legal opinion due to his position as head of the Justice's Department of Legal Counsel when the memo was written? It said that the Geneva Conventions do not apply to the President because they impede the President's Commander-in-Chief Powers and that he could order torture. (Such a mundane theory would also invalidate the INF treaty Reagan signed with Gorbachev, but that's another story). The adminstration's stance was essentially "trust us" they are bad guys. They are probably right, but what is so bad about judicial oversight that you would oppose it, especially since the adminstration's torture memo makes me very wary of trusting them?

Richard Samp: I'm not sure that this is the proper place to argue what Judge Bybee's DOJ memo actually said, other than to say I think you have misread it. Neither I nor the government never claimed that no check was necessary. I agree with you that the Court got it pretty much right -- which is that there needs to be some independent review (either by a court or a military tribunal) but that review should be relatively deferential.

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Chicago, Ill.: I'm not familiar with your organization but given the summary provided at the outset of this chat, I'm surprised that you are so in favor of the Administration's position here. Aren't you even the least bit concerned about the potential for abuse here by a federal government that now asserts it may hold citizens, without charge, for as long as it likes? Are you that obsessed with security that you are willing to sacrifice the due process guarantees that are in place precisely to prevent the government from behaving tyrannically? Or do you just assume that it's somebody else who's at risk of being labeled an "enemy combatant" so what's the big deal? Thanks.

Richard Samp: Again, I think the government's position has been misrepresented; it has never asserted that there should be no check on Executive power. It never contested Padilla and Hamdi's right to file habeas corpus positions. My organization strongly supports the right to file such petitions. My disagreement with on the other side stems from: (1) their unwillingness ever to permit detention of American enemy combatants, no matter how strong the evidence, and (2) their assertion that the military's judgment that someone is an enemy combatant is not entitled to deference.

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Alexandria, Va.: How exactly will this decision change the Guantanamo situation? Under the most recent decisions, would the prisioners be granted access to an attorney if they requested it, as they have been shown to have a legal right to challenge their detention? If they have a legal right to challenge it, but the government still isn't releasing information about who is being held, or giving them access to attorneys, how can the Supreme Court decision be enforced?

Richard Samp: The Rasul decision doesn't address the attorney access question. I suspect that the government would resist granting such right, and that issue will be fought out in the lower courts. The families of detainees know that their relatives are there, and they have been allowed to file habeas petitions on behalf of those incarcerated. But obviously, the attorneys hired in those cases can't fully develop their cases if they can't talk to their clients.

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Washington, D.C.: With all due respect, your opening statement was extremely misleading. Both of the cases not dismissed on jurisdictional grounds (Hamdi and the Guantanamo case) demolish the administration position on the central issue: non-POW prisoners, whether citizens or not, will now have the right to challenge their detention in federal court. The administration has never accepted this principle. How can you spin this as anything but a defeat for Bush and a victory for civil liberties?

Richard Samp: With all due respect, you are wrong about the government's position in the Hamdi case. The government never denied the right of American citizens to challenge detention. The government did permit nonresident aliens to get one foot into a federal courthouse (and overruled contrary precedent in the process), but I seriously doubt that they will ever accomplish much through such lawsuits other than giving headaches to government lawyers. If the government is given deference in its factual findings, then all but those cases involving clear-cut cases of mistaken identity or racial profiling will be thrown out of court.

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Queens, N.Y.: In the last couple of weeks the Supreme Court has refused to rule on key constitutional issues -
1. The government's right to hold a US citizen without access to legal representation and without filing charges (Padilla Vs. Rumsfeld)
2. The right to know who participated in Dick Cheney's energy policy committee
3. The use of 'Under God' In the Pledge of Allegiance
After taking these cases, having hearings and deliberating it has turned around and refused to render a constitutional decision on flimsy technical grounds.
Do you believe the Supremes are playing politics by delaying a ruling on critical constitutional matters.
The flimsy reasons they've used - after holding these cases for almost a year now -- could have been a year ago as reasons for not taking the cases in the first place and sending them back to lower courts.
As a result they have decided to hold these important matters in limbo for at least 2 years?
Do you think it serves American citizens to have the Supremene Court manage its decisions based on the political environment instead of the need to resolve constitutional questions?

Richard Samp: In all three cases you cite, the government hasd lost below. So if, as you suggest, the Court had refused to take the cases, government losses in those cases would still stand. Because the cases all raised hotly contested issues, the Court was correct to grant full review (rather than adopting the only other alternative -- summary reversal). I fully agree with the Court's reasoning for avoiding hearing the Padilla case- the position it took was in line with the majority of lower court decisions. I suspect that the court ducked the merits in the Pledge case because it could not put together a single majority viewpoint -- not a bad reason for ducking the merits. In the Cheney case, the Court did not duck the merits; it ruled for Cheney. The case is not yet over because the Court rightly decided not to address issues not yet ruled on by the lower courts.

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New York, N.Y.: Why do You think the Court passed on Justice Scalia's distinction between citizens and non-citizens? It seems that Justice Scalia believed that citizens were due much more process than non-citizens.

Richard Samp: I agree with you that Justice Scalia was making a huge distinction between citizens and non-citizens. But I don't believe the Court "passed" on that distinction. I suspect that a majority of the Court would agree with him on that distinction if the right case ever came along. By ruling for the plaintiffs in the Rasul case, the Court was not saying that nonresident aliens are on a par with citizens. it was simply saying that nonresident aliens ought to be able to get inside the federal courthouse.

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Washington, D.C.: Do you think the decisions today in any way opens the door for international law to be applied or cited in later cases? Does it deter its later use, seeing that the decisions make little use of it, despite its substantial role in many of the briefs submitted to the Court?

Richard Samp: I didn't see anything in today's decisions that directly addressed that point. I suspect that tomorrow's decision in Sosa v. Alvarez-Machain will address the point, so stay tuned.

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Washington, D.C.: I saw that Padilla's case was sent back to the lower courts because Rumsfeld was improperly named as a party, when it should have been a lower-ranking official. What's the protocol for determining against whom exactly one files a lawsuit in the federal government? It seems that all cases against any federal official or agency could simply be called "v. Bush" or "v. U.S.", but they aren't.

Can you explain? Padilla's error (or that of his... lawyer?) is obviously more important than a mere typo if the Supreme Court is willing to dismiss a case based on it.

Richard Samp: The general rule in habeas corpus cases has been that a prisoner is supposed to file suit in the federal district in which he is being held, and should name as the defendant his immediate custodian (i.e., the head of the facility in which he is being held). In this case, Padilla should have filed in South Carolina and should have named the head of the military brig in which he is being held there. Instead, he filed in New York.

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Seattle, Wash.: Would you explain why you are in favor of having the courts give deference to the military's determination that someone is an enemy combatant? Courts don't give deference to a policeman's determination that someone is a thief. Shouldn't the judiciary make an independent determination of whether detention is justified rather than relying on the word of the party advocating that detention?

Richard Samp: The courts have long recognized that the Constitution places almost all foreign affairs and military issues into the hands of the Executive Branch and Congress. So the reason for granting deference is that courts are, under the Constitution, supposed to play a lesser role in foreign affairs issues than they play in criminal law issues.

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New York, N.Y.: According to Elisa Massimino, "None of the decisions today questions the sufficiency of standard battlefield practice on the detention of combatants. The problem in these cases is that the US failed to comply with these procedures, including its own military regulations, on how to deal with captured combatants." Is that true? It seemed like the government was saying that military screening separated out thousands of people and that the Geneva Conventions did not apply?

Richard Samp: The Geneva Convention only addresses the issue of how the military goes about separating POWs from other combatants. There is considerable dispute about what the Convention says. The Administration says that it can make a categorical determination that no Taliban are entitled to POW status because they don't fit the definition of a regular fighting force, while Administration critics insist that a case-by-case determination must be made.

Others claim that the Geneva Convention requires the military to conduct hearings into who is a combatant and who is innocently on the battlefield. They are wrong in that respect -- although it obviously is a good idea to have some sort of hearing, and we haev often done so in conflicts outside of Afghanistan.

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Chicago Ill.: What Hamdi case are you describing? You say that the government never challenged Hamdi's right to file a habeas petition -- how can you make that claim when the government refused to let Hamdi even meet with a lawyer? The present case was filed by Hamdi's father as next friend, because Hamdi himself was denied any access to the courts.

Richard Samp: And that is the case that the government never objected to being filed. I agree with those who criticize the government for waiting too long to allow Hamdi to see his lawyer. But that is now a moot point -- he has had access to counsel since February.

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Atlanta, Ga.: You said: "If the government is given deference in its factual findings, then all but those cases involving clear-cut cases of mistaken identity or racial profiling will be thrown out of court." No offense, but that doesn't sound like due process. That sounds like the Court put a stamp of approval on the Administration's actions while verbally slapping it on the wrist.

Richard Samp: I agree with you. That is why the Washington Legal Foundation took the position in Rasul that the courts should not be open to nonresident alien detainees. What's the point of opening the courts if at the end of the day you are largely going to rubberstamp the military's determinations? But I suspect that, in the end, that is what is going to happen.

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New York, N.Y.: Why does the other side believe they won such a victory for "substantive due process" and "universality morality" if it is true that these cases were narrowly decided on jurisdictional, standing, venue, systemic deference to trial courts, and other practical considerations of "procedural due process"? It seems like the Court recognized the other side's principles, or big picture, but ruled in favor of your side's practices, or little picture. Would you agree?

Richard Samp: I agree with you that the anti-Administration side of the case is engaged in significant spin in hailing the decisions as big victories. I suspect that it has a lot to do with Presidential election politics. The other side is certainly correct that the decisions today are a victory for the rule of law and of the right to judicial review, but those are principles that those on both the right and left can agree on.

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Washington, D.C.: You have said a couple of times in this chat that the government never tried to keep Hamdi from speaking up and challenging his detention. This is confusing to me. I thought a central issue in the Supreme Court appeal was whether Hamdi was wrongly prevented from being heard (by the Fourth Circuit, now overturned). What am I missing?

Richard Samp: The Fourth Circuit always supported Hamdi's right to bring a habeas corpus petition, to challenge the legality of his detention, and to demand that the government introduce evidence of his guilt. But the court proceeded to reject the legal challenge on the merits (a decision the Supreme Court affirmed today), and said that the evidence the government ended up submitting was essentially irrebutable. The Supreme Court disagreed on that last point. It said that Hamdi was entitled to present evidence in an effort to rebut the government's position, albeit the government's position was entitled to deference.

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Philadelphia, Pa.: What do these decisions mean for the government? It seems like the Court struck down their most worrisome argument, that the government could detain people free from any court scrutiny.

Richard Samp: The government never made that argument. The fact that many people believed that the government did make that government is a tribute to the success of anti-Administration spin.

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New York, N.Y.: Does this decision say that military due process on the battlefield is insufficient? Is the Court saying that a military officer cannot decide that an armed man shooting at our troops is an enemy combatant? Is the Court saying that a tribunal must be convened near the battlefield to decide these issues?

Richard Samp: No. Surprisingly, the Hamdi court conceded that the government can keep these cases out of federal court altogether so long as the military establishes a fair tribunal that allows the defendant a fair opportunity to present his case.

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Arlington, Va.: What's your take on the Miranda decision? Is Miranda as we know it dead?

washingtonpost.com: US Court: Confession Can't Be Used in Miranda Case (Reuters, June 28)

Richard Samp: I haven't read the decisions carefully. At least one of the two decisions strongly supported Miranda -- so I hardly think it's dead.

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New York, N.Y.: Were you afraid that O'Connor would tip the scale too far to the left in the ultimate decision? Which Justice would have been your Ideal Drafter of the opinions in these cases?

Richard Samp: I enjoyed the Chief Justice's book on civil liberties in times of war. He has given a to of thought to the issue, and could have written an excellent decision in Hamdi.

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Richard Samp: I suspect you will see a lot of press tomorrow suggesting that the government suffered a major defeat. Don't believe it. Both the Administration and civil liberties faired well today.

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