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Supreme Court: Detainees and Enemy Combatant Rights

Elisa Massimino
Human Rights First
Monday, June 28, 2004; 2:00 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.

Elisa Massimino, director of the Human Rights First Washington, D.C. office, discussed the Supreme Court's decisions and the rights of detainees.


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Human Rights First filed two "friend of the court" briefs on behalf of Yaser Hamdi, currently being held in military custody in the United States.

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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Elisa Massimino: The Hamdi and Padilla cases were about whether President Bush could deny to American citizens their constitutional rights to due process, to a lawyer, a fair and speedy trial, to any communication with others, or real review by a judge, by simply labeling a person an "enemy combatant" and then placing them under military control. The Rasul/Odah cases (which dealt with detainees at Guantanamo Bay) were about whether President Bush could detain hundreds of people indefinitely in an off-shore prison camp, with virtually no communication, subject them to interrogation and no judicial process of any kind, essentially keeping them in a legal black hole, where neither the laws of war nor the constitution applies. Today the Supreme Court rejected both of these claims by the Administration, and held that whatever the commander-in-chief power is in wartime, it must be exercised inside the bounds of law and the Constitution.

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Concord, N.H.: The Reuters headline (and I'm sure they are not alone) labeled this decision as "a blow in the war on terrorism." That makes me insane. This is a victory in the war on terrorism because it confirms that we will wage it on terms consistent with traditional American values and freedoms. If we abandon those values and freedoms to "win" the war on terrorism, what have we really won? When we do win, having won without compromising these values and freedoms will make our victory even more historic.

Elisa Massimino: I agree that the Reuters headline doesn't get it right here. As the Supreme Court pointed out so eloquently in its decision in the Hamdi case, it is precisely in times of conflict like those we face today that essential due process rights are so important. The court does not dispute the gravity of the danger facing our country, but it is a victory for the rule of law and the constitution when the court states "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." This fundamental right -- to challenge the basis for detention by government authority -- is part of the fabric of our democracy.

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Philadelphia, Pa.: While the Court did uphold the Bush Administration's right to detain people, it seemed like the Court basically gutted the claim that citizens and foreigners being held had no right to judicial review. So what happens now, do the few hundred people at Guantanamo all start petitioning the federal courts for help? And how does this change the Bush administration strategy for dealing with these people?

Elisa Massimino: You're right that the court essentially imposed a burden on the government to justify the detentions of enemy combatants and others it is holding in the so-called war on terrorism. But practically speaking, what happens now to those being held, some for more than two years, at Guantanamo? Last week, the Pentagon announced that it was finalizing rules to evaluate the need to continue holding prisoners at GITMO in order to speed up the release of those who, in the Administration's view, no longer pose a danger. One thing today's decisions undoubtedly will do is to put that process in to overdrive. I would think the Administration now has added incentive to make sure that it is only holding those whose detention it is willing to defend in federal court.

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Washington, D.C.: if you believe that detainees in Guantanamo Bay deserve habeas corpus review by a US court, do you believe that detainess who are in a POW camp in Afghanistan deserve review by a US court? If so, on what legal basis? If not, why not? Would it then be okay for the US to move the Gitmo detainees back to Afghanistan? In other words, what's so special about Gitmo that a prisoner taken on a battlefield gets review because he happens to be located there rather than still on or close to the battlefield where he was taken?

Elisa Massimino: I think the key distinction here is not the location of the prisoners but rather their status under the law. The Bush Administration has refused to acknowledge any legal framework under which the detainees it is holding would have rights: it has rejected the applicability of the Geneva Conventions to these prisoners, and argued in the cases before the Supreme Court that the detainees are beyond the reach of the constitution as well. I think the Administration would have been in a much stronger position had it recognized the applicability of the Geneva Conventions and treated the GITMO detainees as prisoners of war, which under international law can be held until the end of the conflict (in that case, the war in Afghanistan). But it rejected that position, in large part because it wanted to assert the right to interrogate, under circumstances we are now learning may have breached OTHER provisions of international law, such as those prohibiting torture and cruel treatment. The court today does not rule that the US can't detain prisoners of war captured on the battlefield. But it does say that detainees who are not afforded the protections of the Geneva Conventions and who assert that they are not combatants at all must have access to the courts to challenge their detention.

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New York, N.Y.: Your explanation of the issues in these cases does not seem to be an accurate statement of the issues. According to Justice Scalia, there is a difference between the extent of the Executive's power over citizens and non-citizens. In the case of citizens, ". . . A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face" of the American Constitution. In the case of non-citizens, "The Commander in Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs." This seems to concur with Justice O'Connor's concerns about "the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law." Why do you believe that citizens deserve the same rights as non-citizens? Is the American Constitution a universal law?

Elisa Massimino: I base my explanation here on what the Justices writing the majority opinions in these cases are saying. The constitution not only enumerates rights for "people" (not just "citizens") under the jurisdiction of our government, but also constrains in important ways the exercise of our government's authority over individuals. That, I think, is what is at the center of these cases. The Executive Branch here was asserting a fairly radical view of the scope of executive power, even in wartime. It's important to see the Court's response in that context. There is ample precedent which constrains the power of the executive in wartime, even over property. Here we're talking about the liberty interests of people, some of them United States citizens. The court is setting a baseline here, and that is that there must be some avenue for people -- whether they are US citizens or not -- to challenge the legality of their detention. Arguably, at least in the initial stages of these detentions, a military process could have sufficed. But the Administration rejected that as well. So now it will be up to the courts to decide.

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Washington, D.C.: Hi, I love your organization!

Why do you think the court was brave enough to address the substantive isssues of Hamdi but not for Padilla?

washingtonpost.com: Justices Decide Padilla Case on Technicality (Reuters, June 28)

Elisa Massimino: Many people predicted that the Padilla case would be the hardest for the government to prevail on, since it involves not only a US born US citizen, but one picked up on US soil. I think, while today's decision punts on the merits of the Padilla case, the ruling in Hamdi means that it will be difficult for the government to prevail without convincing a court that it's allegations about Padilla -- of which we know more now that the Justice department has released its intelligence about Padilla's activities -- are sufficient to classify him as an enemy combatant. Justice Stevens in his dissent in Padilla made an important point, I think, linking this case with the issue of interrogation. He said that, while "executive detention of subversive citizens...may sometimes be justified to prevent persons from launcing or becoming missiles of destruction"..."It may not...be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure."

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Anonymous: Do you consider this a big win for your group? Is there anything you were hoping for in these rulings that you did not receive?

Elisa Massimino: I consider these cases a win for the rule of law, for the constitution, and for all americans interested in getting some assurance that their government is operating with the kinds of checks and balances that have served us so well throughout the history of our country. The Court in these cases was clearly aware of the seriousness of the dangers which continue to be posed by those who seek daily to harm the US and its citizens. But it did what courts are supposed to do, what the constitution and the founding fathers intended courts to do, and that is to provide a reasonable check on executive power. As Justice O'Connor wrote in the Hamdi decision, "it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposed making available such a challenge." I think these are modest decisions, written in a way that recognizes the unique power of the commander in chief during wartime, but sets out the constitutional limits on that power.

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New York, N.Y.: You just wrote: "The court is setting a baseline here, and that is that there must be some avenue for people -- whether they are US citizens or not -- to challenge the legality of their detention." If the court gets to decide the baseline during times of war without relying on a specific law passed by Congress, then isn't the Court supervising the President's interpretation of the Constitution? Shouldn't the people decide if they agree with the President, by booting him out of office? What makes this series of decisions any less antidemocratic than Bush v. Gore?

Elisa Massimino: Well, the Court is supposed to supervise the President's interpretation of the Constitution. That's exactly what the founding fathers intended the role of the judiciary to be. Granted, that role for the courts is somewhat more deferential during wartime, but it is still central, particularly in situations where the risk is great that the executive branch is consolidating power, throwing the checks and balances out of whack. As Justice O'Connor wrote in the majority opinion in the Hamdi case, "we ...reject the Government's assertion that separation of pwoers principles mandate a heavily circumscribed role for the curts in such circumstances." "this approach serves only to condense power in a single branch of government." That is precisely the job of the courts, and it becomes a heightened duty in wartime, when the temptation by the executive is to overreach.

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Greenwich, N.J.: I don't understand why everyone doesn't instantly understand that this decision is a victory for democracy. I think we all agree democracy is what we want to defend.

What are the good arguments on the other side for detaining people without rights or recourse?

Elisa Massimino: The government has argued that the purpose for detaining these prisoners is twofold: one, to keep enemies off the battlefield, and two, to interrogate them for purposes of learning more about the enemy. These are completely legitimate goals. It is part of the purpose of the Geneva Conventions and other provisions of the laws of war to enable warring nations to hold prisoners until the end of the conflict (this, in fact, is a humanitarian advance over the way things used to operate where there was no right to quarter and prisoners were just shot). But the key is that there be some legal status for every prisoner held in wartime. This is important both to ensure the humane treatment of prisoners, and to allow there to be a check on the power of the detaining authority. This is to make sure that people are not erroneously labeled combatants when they in fact are civilians or some other protected person. Keep in mind that many of those who have been released from GITMO allege that they were never combatants at all. The system the US was operating under until today did not recognize this possibility, and failed to provide any of the safeguards in the Geneva Conventions to guard against it.

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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?

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. Once the Administration had unmoored itself from the law with regard to these detainees, it is not surprising that we saw other abuses, including abuse during interrogations, along the way. In past conflicts -- the first Gulf War, for example -- our military convened hundreds of Geneva Convention mandated tribunals to determine whether captured individuals should be held as prisoners of war or released as civilians. And many, many of those who went through this process were found to have been civilians. But the Bush Administration refused to apply these procedure here. So there was no process here for making sure mistakes weren't made.

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East Atlantic Beach, N.Y.: Would the court have ruled differently had they not found Guantanamo to be under U.S. jurisdiction?

Elisa Massimino: That's an interesting question, and one that has ramifications also in the torture/abuse scandal. One of the arguments the Administration is making for why it is not applying the federal law which makes torture a crime when committed "outside the United States" to the actions of US officials at Abu Ghraib is that Iraq (at least until today, i suppose) was not "outside the United States" for purposes of the applicability of federal criminal law. I don't think the court's logic is limited to GITMO completely, though there is a long discussion in the opinion about the unique nature of the base in Cuba. There are other places, some perhaps undisclosed at this time, where the United States is exercising complete control and jurisdiction over prisoners it is holding (see www.humanrightsfirst.org for a report on undisclosed locations). But it clearly made a difference to the court that the US has such long-term and complete operational control of GITMO, and that other US laws apply fully to conduct there.

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New York, N.Y.: The Founding Fathers also intended for the President to have his own powers, which is why he can reflect public opinion by vetoing stupid Acts of Congress. If the President cannot reflect public opinion by interpreting the Constitution, because the unelected judiciary steps in the way, then what is the function of the Executive, other than vetoing stupid Acts of Congress? What did the Court just protect in the Cheney case and why do we have elections at all? Why not just have liberal judges and academics decide everything?

Elisa Massimino: with respect to your last question there, i urge you to read justice scalia's dissent in the hamdi case -- "Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promply brought, or (2) Congress has suspended the writ of habeas corpus."

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Chicago, Ill.: First let me commend the work of your organization in this area. Outstanding.

Second, is my question: what do you think about the lack of discussion in the cases about the arguably arbitrary category of "enemy combatant" to sidestep established protections such as the Geneva Conventions? Do you think it simply falls under the Court's deference to the Executive in times of national crisis? Do you think it will be regrettable in the long run that the Court did not reach this issue and thus, did not officially denounce such an arguably manipulative tactic?

Elisa Massimino: I agree, this is a huge gap in the decisions. The Geneva Conventions, ratified by the US and as such part of the supreme law of the land under the constitution, does not recognize the category of "enemy combatant", and you're right to point out that the Administration has used it here explicitly to sidestep the protections of the Geneva Conventions. I don't think that we've heard the last of that issue, though, and I'm sure it will be aired by the parties as the Hamdi and Padilla cases work their way back through the courts.

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Elisa Massimino: These are historic cases with great import for the country and for the stature of the United States internationally in the war on terrorism. Many around the world have been shaken in recent weeks by the pictures of US soldiers engaging in torture and abuse of prisoners in Iraq, and by the subsequent leaking of memos which seem to authorize illegal conduct. These decisions speak clearly to the constraints on the Executive Branch, even in wartime, to uphold the fundamental rights of due process on which the country was founded. While they are important for Americans in their reassertion of the principles of checks and balances and the appropriate roles for the three branches of government, we should all be aware that the world was watching these cases very closely. The decisions today are a victory for those principles.

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