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Three Supreme Court decisions in the war on terror

Overall, I would say that these are good news for civil libertarians. In the first decision below, there was no finding of substance, but in the other two, the court upheld the right to having a court decide who can and cannot be held, even if designated as an "enemy combatant", even if captured and even if held overseas at Guantanamo Bay.

Rumsfeld v. Padilla

Padilla, a United States citizen, was taken in by federal agents executing a material witness warrant issued by the District Court of Southern New York in connection with a grand jury investigation into the September 11, 2001, al Qaeda terrorist attacks. After he was taken into custody, President Bush issued an order to Secretary of Defense Rumsfeld designating Padilla an "enemy combatant" and directing that he be held in military custody. Padilla was moved to a Navy brig in South Carolina where he has been held since.

His lawyer claimed that Padilla�s military detention violates the Constitution, and named as respondents the President, the Secretary, and Melanie Marr, the brig�s commander. The Government argued that Marr, as Padilla�s immediate custodian, was the only proper respondent, and that the District Court lacked jurisdiction over her because she is located outside the Southern NY District.

The court held that the Secretary's personal involvement made him a proper respondent, and that it had jurisdiction over the Secretary under New York�s long-arm statute, despite his absence from the District. The court accepted the Government�s contention that the President has authority as Commander in Chief to detain as enemy combatants citizens captured on American soil during a time of war.

The appeals court agreed that the Secretary was a proper respondent and that the Southern District had jurisdiction, but reversed the original decision on grounds that the President lacks authority to detain Padilla militarily.

In a 5 (Rehnquist, O�Connor, Scalia, Kennedy, Thomas) - 4 (Stevens, Souter, Ginsburg, Breyer) decision, the Supreme Court held that the Southern District lacks jurisdiction and therefore declined to address the question of whether the President has authority to detain Padilla militarily. They also held that Commander Marr is the only proper respondent to Padilla�s
petition because she, not Secretary Rumsfeld, is Padilla�s custodian.

Presumably the petition will be refiled naming only Commander Marr.

Rasul v. Bush

The President sent Armed Forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it. Two Australians and 12 Kuwaitis were captured during hostilities and are being held in military custody at Guantanamo Bay. The United States occupies Guantanamo under a lease and treaty recognizing Cuba�s ultimate sovereignty, but giving this country complete jurisdiction and control as long as it does not abandon the leased areas. The fourteen aliens challenged the legality of their detention, saying that they had never been combatants against the United States or engaged in terrorist acts, and that they have never been charged with wrongdoing, permitted to consult counsel, or provided access to courts or other tribunals.

The District Court dismissed the suits for lack of jurisdiction, saying that aliens detained outside United States sovereign territory have no right to such relief. The Court of Appeals agreed.

In a 6 (Stevens, O�Connor, Souter, Ginsburg, Breyer, Kennedy) - 3 (Scalia, Rehnquist, Thomas) decision, the Supreme Court held that U. S. courts do indeed have jurisdiction over the legality of detaining hostile foreign nationals captured abroad and incarcerated at Guantanamo Bay.

Hamdi v. Rumsfeld

Congress passed the Authorization for Use of Military Force (AUMF), empowering the President to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the September 11, 2001, al Qaeda terrorist attacks. The President then ordered the Armed Forces to Afghanistan to subdue al Qaeda and the supporting Taliban regime.

Hamdi, an American citizen whom the Government has classified as an "enemy combatant" for taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained in a brig in Charleston, SC.

This habeas petition alleges, among other things, that the Government holds Hamdi in violation of the Fifth and Fourteenth Amendments. Although the petition did not elaborate on the factual circumstances of Hamdi�s capture and detention, other documents assert that Hamdi went to Afghanistan to do "relief work" less than two months before September 11 and could not have received military training. The Government attached to its response a declaration from Michael Mobbs, a Defense Department official. Mobbs cited various details regarding Hamdi�s trip to Afghanistan, his affiliation there with a Taliban unit during a time when the Taliban was battling U. S allies, and his subsequent surrender of an assault rifle. The District Court found that the Mobbs statement, standing alone, did not support Hamdi�s detention and ordered the Government to turn over numerous materials for review in secret.

The Circuit Court reversed, stressing that, because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government�s assertions was necessary or proper. Concluding that the facts asserted by Mobbs provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi, the court ordered the petition dismissed.

The appeals court asserted that express congressional authorization of the detention is required by law — which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress" — but that the AUMF�s "necessary and appropriate force" language provided the required authorization for Hamdi�s detention. It also concluded that Hamdi is entitled only to a limited inquiry into his detention�s legality under the war powers of the political branches, and not to a searching review of the facts underlying his seizure.

In a 6 - 3 (Scalia, Stevens, Thomas) decision, the Supreme Court overruled the appeals court and sent the case back. Four justices (O'Connor, Rehnquist, Kennedy, Breyer) concluded that although Congress did authorize the detention of combatants in the narrow circumstances alleged in this case, due process requires that a citizen held in the U. S. as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention. Two justices (Souter, Ginsburg) concluded that Congress did not authorize Hamdi�s detention; however, they joined with the other four to conclude that Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant.

For news coverage of these decisions, see the New York Times and the Guardian.

Mithras has a thoughtful post about these decisions. He's obviously read the decisions themselves and not just the abstracts, which is what I did. I hope he's wrong but I fear he's not.

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