With its decisions regarding people the government has detained in connection with the undeclared “war on terrorism,” the U.S. Supreme Court has done a great deal to restore a semblance of balance in the U.S. government by reining in untrammeled executive power.
That’s at least somewhat reassuring.
On Monday, the Supreme Court announced its decisions in cases related to whether the federal government has the right to detain suspects without enumerating charges and whether the suspects, once detained, have a right to a lawyer and due process.
The decisions were not quite as clear-cut as they might have been — for instance, sidestepping the issue of Congress’ power to declare war cries out for adjudication but probably won’t get it — and the justices split in sometimes surprising ways. But the bottom line, as Justice Sandra Day O’Connor put it in the Hamdi case, is the court “made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”
Three cases are of interest here. In Hamdi v. Rumsfeld, Yaser Esam Hamdi, an American citizen by birth, was caught fighting on the side of the Taliban in Afghanistan, declared an “enemy combatant,” and held for two years with no charges filed and no contact with his family or a lawyer.
Jose Padilla is the alleged “dirty bomber” who was arrested in a Chicago airport before he had a chance to carry out any of the terrorist acts the government alleges he was plotting, and has been held incommunicado in a military prison. In Rasul v. Bush, the court took up the contention that foreign fighters at the Guantanamo prison on Cuba can have access to U.S. courts to contest or clarify their status.
To be sure, the court did uphold the right of the president to declare people enemy combatants (though Justice O’Connor noted that the term lacks a precise legal definition) and detain them. But it rejected decisively the breathtaking claim that the president has the sole power, once he has used the term “enemy combatant,” to keep somebody imprisoned indeterminately and answer to no one for his decision.
The court ruled that a citizen held as an enemy combatant is entitled to “notice of the factual basis for his classification” and “a fair opportunity to rebut the government’s assertions before a neutral decision-maker.” It continued: “we necessarily reject the government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances.”
Justices Scalia and Stevens went further in a dissent, arguing the right of habeas corpus — the ancient protection against arbitrary detention — can be suspended only by Congress and Hamdi’s detention was therefore entirely illegitimate.
In Padilla’s case, the court sidestepped the issue on the grounds that his case had been brought in the wrong court and sent it back to a lower court for resolution. But its arguments suggested that if anything Padilla has a stronger case than Hamdi.
As for the prisoners at Guantanamo, the court ruled 6-3 that federal judges have jurisdiction to consider habeas corpus petitions from detainees who argue they are being unlawfully held. It left some details unclear. Whether the issue can be handled by a military tribunal, whether the cases can be consolidated, whether there will be jurisdiction-shopping, whether charges will be filed before habeas petitions are heard, are all to be decided. But the court was clear that the Constitution requires a semblance of due process even for foreign fighters.
All in all, not a bad day for the ongoing protection of American liberties, and a firm rebuke to those who want to give a president virtually dictatorial, unanswerable power.