WASHINGTON -
In a major defeat for US President George W Bush, the
United States Supreme Court on Monday ruled that
detainees captured in Bush's "war on terror" and
detained at a US base in Cuba or in US territory have
the right to challenge their detention in federal court.
In an 8-1 decision, the justices found that US
citizens detained as "enemy combatants" were entitled to
full due-process rights under the constitution,
including the right to an attorney. In another 6-3
decision, the court ruled that foreign "enemy
combatants" held at the US naval base in Guantanamo Bay,
Cuba, have the right to go to court to argue that they
should never have been detained.
The rulings
amounted to an almost total rebuff of the
administration's assertions that the president, as
commander-in-chief, had the right to indefinitely detain
individuals whom it designated "enemy combatants"
without charges and without access to counsel or the
right to review their status before an independent
court.
"[Monday's] historic rulings are a strong
repudiation of the administration's argument that its
actions in the war on terrorism are beyond the rule of
law and unreviewable by American courts," said Steve
Shapiro, legal director of the American Civil Liberties
Union. "The administration designed its war on terrorism
in an effort to insulate its actions from judicial
review, but the Supreme Court [Monday] clearly and
overwhelmingly rejected that strategy," he added.
The Department of Justice, which represented the
administration, said it would comment on the rulings
only after a full review of the opinions issued by the
court in what were four separate cases.
The
court's rulings come at a time when Bush was already on
the defensive over the controversy caused by the abuse
of detainees at Abu Ghraib prison in Iraq. A series of
internal administration memos that have come to light as
a result of the scandal show that political appointees
in the Justice Department, the Pentagon and the White
House had argued that the president enjoyed virtually
unlimited powers not only to detain suspected "enemy
combatants" without affording them the full protection
of the Geneva Conventions, but also to interrogate them
in ways that could violate US laws prohibiting torture,
as well as international treaties ratified by the US
Congress, such as the Geneva Conventions and the United
Nations Convention Against Torture.
These memos
have drawn outrage from human rights groups and much of
the US legal community, prominent members of which have
charged that such sweeping assertions of the president's
wartime powers are both unprecedented and patently
unconstitutional.
The controversy began claiming
victims last week when the Justice Department's
solicitor-general, Ted Olson, announced his resignation,
reportedly after complaining that he had not been
informed about the memos. At the same time, Jack
Goldsmith, head of the department's prestigious Office
of Legal Counsel, which prepared one of the
controversial memos, abruptly resigned at the same time.
The court's repudiation of the administration's
powers to indefinitely detain US and foreign "enemy
combatants" without review by independent courts is
likely to further weaken the more-ideological legal
forces within the administration.
While none of
Monday's cases involved the treatment of detainees at
Abu Ghraib, a number of analysts said that the scandal
may very well have affected the sharp tone of some of
the decisions.
In all, the court issued rulings
in three cases - two that dealt with the rights of US
detainees held as "enemy combatants", and one
consolidated case that dealt with those of foreign
detainees being held at Guantanamo.
In the case
brought by an attorney on behalf of Yaser Esam Hamdi - a
Louisiana-born Saudi who reportedly surrendered to the
Northern Alliance in Afghanistan, was subsequently
transferred to US custody as a suspected Taliban member,
and has been detained in a military brig in South
Carolina with no access to his family - the court ruled
8-1 that he had the right to both an attorney and to
challenge his detention in court.
The majority
opinion, written by Justice Sandra Day O'Connor,
conceded that Congress gave the president the power to
detain citizens in the war under "very limited
circumstances", but went on to assert: "Due process
demands that a citizen held in the United States as an
enemy combatant be given a meaningful opportunity to
contest the factual basis for that detention before a
neutral decision-maker."
The court "made clear",
she wrote, "that a state of war is not a blank check for
the president when it comes to the rights of the
nation's citizens."
"By recognizing Mr Hamdi's
right to challenge his detention in court with a lawyer,
the court reaffirmed that the independent judiciary
remains a very real check on presidential power - even
over issues of national security," said Deborah
Pearlstein, director of the US Law and Security program
at Human Rights First (HRF).
In a second
decision involving the fate of Jose Padilla, a US
citizen who was arrested at Chicago's main airport two
years ago on suspicion of plotting with al-Qaeda to
detonate a radioactive device and also held in South
Carolina, a majority of five justices sent the case back
to a lower tribunal on a technicality. They said the
case should have been filed in South Carolina, rather
than in New York.
In light of the Hamdi
decision, however, legal experts said that Padilla's
case has probably been strengthened not only because, as
a citizen, he will be entitled to the same rights as
Hamdi, but also because the majority ruling indicated
discomfort with whether Padilla could be considered an
"enemy combatant" at all given that he was arrested far
from any battlefield. They said the government will
probably have to either charge him with a crime or
release him.
In the Guantanamo case, which was
brought by detainees from Kuwait, Australia and Britain,
the court ruled 6-3 that foreigners seized as potential
terrorists in Afghanistan and Pakistan and held at the
US base in Cuba may have access to the federal courts to
challenge their captivity.
Under the Geneva
Conventions, prisoners of war are supposed to be
guaranteed access to an independent tribunal to contest
their detention, but the administration insisted that
Taliban and al-Qaeda suspects would not receive formal
given prisoner-of-war status.
Writing for the
majority, however, Justice John Paul Stevens asserted
that "aliens at the base, like American citizens, are
entitled to invoke the federal courts' authority" to
determine whether they are wrongly held.
Amnesty
International applauded the decision and called for the
administration to "quickly afford all detainees held by
the US this fundamental right".
Reviewing the
more than 100-year history of US control over the base,
the majority also rebutted the administration's argument
that Guantanamo was not subject to the jurisdiction of
the US federal courts.
The majority's ruling is
potentially far-reaching for at least two reasons.
According to a recent investigative article by the New
York Times, most of the more than 600 detainees still
held at Guantanamo were low-level Taliban soldiers or
even innocent bystanders who were caught up in military
operations and have no intelligence value. Scores of
detainees have already been repatriated, but Monday's
decision could result in the government speeding up the
process for the remaining detainees.
The ruling
could also be used as the basis for new lawsuits by
family members of other prisoners who are detained as
suspected terrorists in some two dozen other overseas
facilities under US control, including in Iraq,
Afghanistan, Diego Garcia, Thailand, and aboard at least
two US ships in the Indian Ocean, according to a recent
HRF report.
"While Stevens tied the decision
very much to the specific situation of Guantanamo," said
Shapiro, "the door has been opened to potential claims
by detainees being held elsewhere."
A habeas
corpus case is directed at whoever has actual, as well
as legal custody, of the detainee, he added, noting that
the transfer of sovereignty to the interim government in
Iraq Monday could affect custody of detainees who have
been held by US forces there to date.
