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Bush's Good Day in Court

By David B. Rivkin Jr. and Lee A. Casey
Wednesday, August 4, 2004; Page A19

The three "war-on-terrorism cases" decided by the Supreme Court at the close of its term in June have been portrayed -- especially overseas -- as significant defeats for the Bush administration. This is largely because the court ruled, over the administration's strong objections, that the men, now held as al Qaeda and Taliban members at the Guantanamo Bay naval station in Cuba, may challenge their detention through the federal courts.

But in fact, when all these cases are read together -- the Guantanamo Bay case, along with the court's decisions in Hamdi v. Rumsfeld and Rumsfeld v. Padilla (both involving American citizens held in the United States as captured enemy combatants) -- they mark a significant reaffirmation of the president's constitutional authority as commander in chief in time of war.

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In the context of these cases, the court accepted the following critical propositions: that the United States is engaged in a legally cognizable armed conflict with al Qaeda and the Taliban, to which the laws of war apply; that "enemy combatants" captured in the context of that conflict can be held "indefinitely" without criminal trial while that conflict continues; that American citizens (at least those captured overseas) can be classified and detained as enemy combatants, confirming the authority of the court's 1942 decision in Ex Parte Quirin (the "Nazi saboteur" case); and that the role of the courts in reviewing such designations is limited. All these points had been disputed by one or more of the detainees' lawyers, and all are now settled in the government's favor.

Of course, in upholding the executive's actions on these fundamental points, the justices also made clear that from here on out, the courts will have a role, however circumscribed it might be, in individual cases. In this, the recent war-on-terrorism decisions are not unlike the court's groundbreaking case of Marbury v. Madison (1803), in which Chief Justice John Marshall avoided an open clash with President Thomas Jefferson (by refusing to order the delivery of a judicial commission signed at the last minute by a departing John Adams), but in doing so established the principle of judicial review. For good or ill, the camel now does not just have its nose under the tent, it is comfortably seated at the table. Whether it will dominate the conversation, however, remains to be seen. Much will depend on the president's future actions.

In a plurality opinion delivered in Hamdi v. Rumsfeld, the most important of the many opinions and dissents issued in these cases, Justice Sandra Day O'Connor made clear that although the principles of due process may require that captured al Qaeda and Taliban operatives be given the opportunity to challenge the factual basis of their classification as enemy combatants, this process need not involve the civilian courts. It can take place before a military panel, patterned on the "Article V" procedure established pursuant to the Third Geneva Convention, dealing with the rights of "prisoners of war." Significantly, O'Connor did not suggest that the Geneva Conventions could or should apply in these circumstances but found the U.S. Army regulations implementing this provision to be a useful model.

The Pentagon was quick to accept O'Connor's invitation and has already established a process whereby the Guantanamo detainees can be heard. In this connection, however, it is important to note the burden of proof that the government will have to meet in any further judicial review. This point has received almost no comment, but it is probably the most important practical aspect of the rulings. To "prove" a captive is an enemy combatant, the government need only present "credible evidence." Once this is accomplished, the burden shifts to the detainee -- who must then prove that he was not affiliated with either al Qaeda or the Taliban. As all trial lawyers know, cases are won and lost on the burden of proof, and the court has (properly, we believe) given the United States a very considerable advantage here.

There are, of course, many issues that the court did not answer in these cases, including how soon after capture the right to challenge one's enemy combatant classification becomes effective; whether an American citizen captured in the United States, such as the alleged "dirty bomber" Jose Padilla, can be detained as an enemy combatant; and whether enemy combatants can be tried and criminally punished (rather than simply held until the conflict ends) by military commission. The reaffirmation of Ex Parte Quirin in Justice O'Connor's opinion, which appears to command at least a five-member majority on this point, suggests that they can be so tried. Nevertheless, because of the shifting nature of the court's majority on many of these issues, there is little doubt there will be more terrorism-related cases in the Supreme Court's next term. Overall, though, the executive branch has done very well so far and, assuming a fair and transparent processing of the detainees by the military justice system, should continue to do so in the future.

The writers are Washington lawyers who served in the Justice Department during the administrations of Ronald Reagan and George H.W. Bush.


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