Narrow victory for the US Constitution By Robert Kuttner | June 30, 2004 THANK GOD for the Supreme Court, or at least for the six members who ruled clearly that the president's claims of wartime powers do not trump the rule of law. The court has now exposed the authoritarian nonsense of the administration's claim that a detainee who has not been tried can be held captive as an indefinite menace, simply because the Pentagon asserts it. The entire basis of our system of law rests on the right of an accused person, no matter how heinous the alleged crime, to rebut those accusations before an impartial judge. Strip that away, and you have a dictatorship. It is shocking to have to say so, but it is also fortunate that an earlier generation of Americans had the foresight to commit the United States to international conventions on the treatment of prisoners. When the United States signs and ratifies a treaty, the provisions become a binding part of domestic law. When the United States signed the Third Geneva Convention, the understood purpose was to protect future American prisoners of war from brutal treatment by lawless foreign nations. How ironic that the convention on the treatment of prisoners has become a principal bulwark restraining the lawlessness of an American administration. Bush's legal advisers were forced to invent preposterous fictions that were necessary only because the United States is a signatory. Hence, the lunatic claim, since ridiculed by the Supreme Court, that the United States does not govern Guantanamo or that there are permissible gradations of torture or exempt categories of prisoner. The convention, of course, makes no such distinctions, just as the US Constitution guarantees due-process protections for "persons" and not just for citizens. The American record of signing and adhering to international human rights conventions is checkered, at best. Ever since the Senate refused to ratify the Treaty of Versailles in 1919, the American right has been nervous about subjecting US human-rights practices to international scrutiny. In the 1940s and 1950s, segregationists in Congress went to great lengths to keep the United States from signing international human rights agreements, lest our own systematic racial discrimination come under greater scrutiny and embarrassment. Despite the end of official segregation, the right continues to resist international human rights compacts. As a result, many global human rights initiatives sponsored and championed by the United States have never been ratified. It took us decades to ratify even the convention against genocide. We have still not agreed to many agreements on labor standards. We failed to approve the Kyoto Protocol on Climate Change or the International Criminal Court. We never ratified the Convention to Eliminate Discrimination Against Women, which was drafted with the active leadership of the United States and signed a quarter century ago by President Jimmy Carter. Professor Harold Hongju Koh, the new dean of the Yale Law School, observes that the United States often proposes different rules for itself and the rest of the world. America's ambiguous record on international human rights has turned into a plain disgrace under the Bush administration. The White House made an all-out diplomatic effort (with good reason, it turned out) to have the UN Security Council exempt American soldiers from war crimes prosecutions. Thanks to the revelations of torture at Abu Ghraib, that effort is now dead. The Bush administration, rejecting international human-rights entanglements out of concern for "sovereignty," has been all too willing to undercut US sovereignty and domestic laws protecting consumers and workers, via the World Trade Organization and NAFTA, when the beneficiaries are its corporate clients. On the whole, the United States has a better human rights record than scores of the world's nations. But its recent record under Bush has undercut America as a force for good in the world. Lately, there has been a movement to create a caucus of democratic nations that respect human rights. That strikes me as a very good idea, not just because I'd like to see human rights advanced in places like Sudan and North Korea, but because the United States needs more international scrutiny. I'd like to see a team of international observers make sure that the next election is not stolen. And if it is stolen (again), that three-judge Supreme Court minority, who defended Bush's dictatorial claims, will likely be the core of a new court majority. This nation is the cradle of constitutional government. Who would have thought that the United States would need the court of global opinion and the shelter of global human rights treaties to protect Americans from our own leaders? Robert Kuttner's is co-editor of The American Prospect. His column appears regularly in the Globe. ------------------------------------------------------------------- Supreme Court Affirms Detainees' Right to Use Courts By DAVID STOUT June 28, 2004 WASHINGTON, June 28 -- The Supreme Court ruled today that people being held by the United States as enemy combatants can challenge their detention in American courts -- the court's most important statement in decades on the balance between personal liberties and national security. The justices declared their findings in three rulings, two of them involving American citizens and the other addressing the status of foreigners being held at the Guantánamo Bay Naval Base in Cuba. Taken together, they were a significant setback for the Bush administration's approach to the campaign against terrorism that began on Sept. 11, 2001. "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 decisionmaker," an 8-to-1 majority held in the case of Yaser Esam Hamdi, a Saudi-born United States citizen seized in Afghanistan in 2001. Only Justice Clarence Thomas dissented from the basic outlines of the decision. Justice Sandra Day O'Connor wrote that the campaign against terrorism notwithstanding, "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." In the Guantánamo case, the court ruled, 6 to 3, that federal courts have the jurisdiction to consider challenges to the custody of foreigners. The finding repudiated a central argument of the administration. "Aliens at the base, like American citizens, are entitled to invoke the federal courts' authority," Justice John Paul Stevens wrote for the majority. "United States courts have traditionally been open to nonresident aliens." The dissenters were Chief Justice William H. Rehnquist and Justices Thomas and Antonin Scalia. And in the other case involving an American citizen, José Padilla, the court ruled on what at first glance was a technical issue: that Mr. Padilla filed his habeas corpus petition in the wrong court. A 5-to-4 majority said he should have filed in federal court in South Carolina, since he has been held in a brig in Charleston, rather than in the Southern District of New York. The majority said, too, that the proper target for his case is not Defense Secretary Donald H. Rumsfeld but, rather, Cmdr. Melanie Marr, who is in charge of the brig. "This rule serves the important purpose of prevent forum shopping by habeas petitioners," the majority held. Chief Justice Rehnquist wrote the opinion, joined by Justices O'Connor, Scalia, Thomas and Anthony M. Kennedy. Justices John Paul Stevens wrote an emotional dissent that was joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Justice Stevens wrote that there was ample precedent for finding that the Southern District of New York, where a material-witness warrant was first issued for Mr. Padilla, was the proper court to take up the case, and he lamented that the majority seemed to sidestep the main issues. "At stake in this case is nothing less than the essence of a free society," Justice Stevens wrote. "For if this nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny." The American Civil Liberties Union called the rulings historic and said they embodied "a strong repudiation of the administration's arguments that its actions in the war on terrorism are beyond the rule of law and unreviewable by American courts." Representative Jerrold Nadler of New York, ranking Democrat on the House Judiciary Committee's subcommittee on the Constitution, "reaffirms that even in a time of war, the president does not have the authority to act as a tyrant." Although the cases of Mr. Hamdi, Mr. Padilla and the Guantánamo detainees all arose from the terror attacks of Sept. 11, 2001, and weighed national security against personal liberty, they were considerably different from one another in circumstances. The Guantánamo case involved foreigners: about 600 men of various nationalities seized in Afghanistan and Pakistan during operations against the Taliban; 16 of the detainees, all maintaining their innocence, filed suit. Their case, Rasul v. Bush, No. 03-334, named for the detainee Shafiq Rasul, was argued before the justices on April 20. Besides the basic issue in their case, there was a secondary but still vital question involving the status of Guantánamo Bay itself. Since a 1950 Supreme Court case has been interpreted to mean that enemy combatants held outside the United States have no right to habeas corpus, the detainees had to show through their lawyers that Guantánamo Bay is functionally, if not formally, part of the United States. On the one hand, a long-ago treaty with Cuba said that it retained sovereignty over the base. On the other hand, the treaty also said that the United States exercised jurisdiction and control. In any event, the United States Court of Appeals for the District of Columbia Circuit ruled last year that the federal courts lacked jurisdiction to hear habeas corpus petitions from the detainees -- a position that the Supreme Court rejected today. The majority noted that the 1950 case cited by the administration involved German citizens captured by United States forces in China, then tried and convicted of war crimes by an American military commission in Nanking, and finally imprisoned in occupied Germany. In contrast, the Supreme Court majority noted today, the Guantánamo detainees are not only held in territory arguably under United States control but they also have not had their guilt or innocence determined, unlike the Germans of a half-century ago, and have been held without formal charges. Justice Scalia's dissent, joined by Chief Justice Rehnquist and Justice Thomas, was as emotional in tone as was Justice Stevens's dissent in the other direction in the Padilla case. The majority's holding in the Guantánamo case was so reckless as to be "breathtaking," Justice Scalia asserted. Justice Scalia went on to declare that the majority's position needlessly upset settled law, and was particularly harmful in a time of war. "The commander in chief and his subordinates had every reason to expect that the internment of combatants at Guantánamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs," he wrote. As for the Hamdi and Padilla cases, although they both involve American citizens, the similarities largely end there. For one, Mr. Hamdi was captured in Afghanistan, where the Bush administration contends he was fighting for the Taliban. (His father asserted that he had gone to Afghanistan to do relief work.) Mr. Padilla was arrested at O'Hare Airport in Chicago. Their cases, Hamdi v. Rumsfeld, No. 03-6696, and Rumsfeld v. Padilla, No. 03-1027, were argued together on April 28, having reached the Supreme Court by opposite paths. Mr. Hamdi's lawyers were appealing a ruling by the United States Court of Appeals for the Fourth Circuit, in Richmond. That court held last year that Mr. Hamdi was entitled to challenge his detention by petitioning for a writ of habeas corpus. But the Fourth Circuit dismissed his petition after holding that the government had provided ample justification for classifying him an enemy combatant. In the Padilla case, the government brought the appeal to the Supreme Court in hope of overturning a ruling by the United States Court of Appeals for the Second Circuit, in New York City. Citing a law passed by Congress in 1971 to prohibit the detention of citizens without explicit authorization by Congress, the Second Circuit found that the president was without authority to detain Mr. Padilla, despite the Congressional resolution authorizing military force after the Sept. 11 attacks. Copyright 2004 The New York Times Company ----------------------------------------------------- Enemy Combatants Win Right to U.S. Courts By ANNE GEARAN Jun 28, 12:36 PM (ET) WASHINGTON (AP) - The Supreme Court dealt a setback to the Bush administration's war against terrorism Monday, ruling that both U.S. citizens and foreign nationals seized as potential terrorists can challenge their treatment in U.S. courts. The court refused to endorse a central claim of the White House since the terrorist attacks of Sept. 11 2001: That the government has authority to seize and detain suspected terrorists or their protectors and indefinitely deny access to courts or lawyers while interrogating them. The court did back the administration in one important respect, ruling that Congress gave President Bush the authority to seize and hold a U.S. citizen, in this case Louisiana-born Yaser Esam Hamdi, as an alleged enemy combatant. That bright spot for the administration was almost eclipsed, however, by the court's ruling that Hamdi can use American courts to argue that he is being held illegally. Foreign-born men held at a Navy prison camp at Guantanamo Bay, Cuba, can also have their day in U.S. courts, the justices said. Ruling in the Hamdi case, Justice Sandra Day O'Connor said the court has "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." Steven R. Shapiro, legal director of the ACLU, called the rulings "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." The court sidestepped a third major terrorism case, ruling that a lawsuit filed on behalf of detainee Jose Padilla improperly named Defense Secretary Donald H. Rumsfeld instead of the much lower-level military officer in charge of the Navy brig in South Carolina where Padilla has been held for more than two years. Padilla must refile a lawsuit challenging his detention in a lower court. The court left hard questions unanswered in all three cases. The administration had fought any suggestion that Hamdi or another U.S.-born terrorism suspect could go to court, saying that such a legal fight posed a threat to the president's power to wage war as he sees fit. "We have no reason to doubt that courts, faced with these sensitive matters, will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns," Justice Sandra Day O'Connor wrote in the Hamdi case. O'Connor said that Hamdi "unquestionably has the right to access to counsel." The court threw out a lower court ruling that supported the government's position fully, and Hamdi's case now returns to a lower court. O'Connor was joined by Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Stephen Breyer in her view that Congress had authorized detentions such as Hamdi's in what she called very limited circumstances, Congress voted shortly after the Sept. 11 attacks to give the president significant authority to pursue terrorists, but Hamdi's lawyers said that authority did not extend to the indefinite detention of an American citizen without charges or trial. Two other justices, David H. Souter and Ruth Bader Ginsburg, would have gone further and declared Hamdi's detention improper. Still, they joined O'Connor and the others to say that Hamdi, and by extension others who may be in his position, are entitled to their day in court. Hamdi and Padilla are in military custody at a Navy brig in South Carolina. They have been interrogated repeatedly without lawyers present. In the Guantanamo case, the court said the Cuban base is not beyond the reach of American courts even though it is outside the country. Lawyers for the detainees there had said to rule otherwise would be to declare the Cuban base a legal no-man's land. The high court's ruling applies only to Guantanamo detainees, although the United States holds foreign prisoners elsewhere. The Bush administration contends that as "enemy combatants," the men are not entitled to the usual rights of prisoners of war set out in the Geneva Conventions. Enemy combatants are also outside the constitutional protections for ordinary criminal suspects, the government has claimed. The administration argued that the president alone has authority to order their detention, and that courts have no business second-guessing that decision. The case has additional resonance because of recent revelations that U.S. soldiers abused Iraqi prisoners and used harsh interrogation methods at a prison outside Baghdad. For some critics of the administration's security measures, the pictures of abuse at Abu Ghraib prison illustrated what might go wrong if the military and White House have unchecked authority over prisoners. At oral arguments in the Padilla case in April, an administration lawyer assured the court that Americans abide by international treaties against torture, and that the president or the military would not allow even mild torture as a means to get information. On the Net: The Hamdi opinion is available at: http://wid.ap.org/documents/scotus/040628hamdi.pdf