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Court Orders Judicial Review for Enemy Combatants - 2004-07-16


The U.S. Supreme Court has recently decided that the government cannot indefinitely imprison alleged "enemy combatants," that is persons suspected of hostile acts against the United States. Instead, the government should give them a chance to contest their detention before an impartial review body.

The Supreme Court reviewed the cases of two U.S. citizens, Yaser Esam Hamdi and Jose Padilla, held as enemy combatants. The U.S. government says they were planning terrorist attacks against the United States but has not charged them with any crimes. The Court also considered the case of nearly 600 foreigners captured in Afghanistan and imprisoned at the U-S military base in Guantanamo, Cuba. Stuart Taylor of the Brookings Institution said recently at a Washington briefing that the government tried to keep the suspects from talking to anyone for days, months, even years. During this time, the administration said, detainees have no right to see lawyers or family members. Foreigners held outside the United States have had no rights to any judicial review. Only cursory review was granted to U.S. citizens seited inside the country.

The government claimed those conditions were necessary to obtain valuable information from the prisoners and to prevent future acts of terror against America. But the Supreme Court disagreed. It decided American citizens held as enemy combatants but claiming to be innocent should be able to present their case to an impartial tribunal. The justices further ruled that some form of judicial review, possibly by a military court, must be applied to the foreign detainees at Guantanamo. Neal Katyal, professor of law at Georgetown University in Washington, points out that although the war on terror calls for strong executive powers, the executive must not hide behind a veil of secrecy:

"Those of us, like me, who believe in a strong presidency, a unitary executive theory of the presidency, believe that theory only works if you have public accountability as a check on the presidency. But what the administration has done is couple extremely broad statements about the commander in chief power with a relentless drive for secrecy. Taken together, that's a dangerous recipe."

The U.S. Supreme Court confirmed that the President has the right to capture and hold enemies, but not indefinitely, and not without some legal procedures to guarantee their rights.

Morton Halperin, director of the Open Society Policy Center, says the question is not whether people like Padilla or Hamdi should be locked up for extended periods of time. The initial question before the Court was whether the president can do this on his own, without referring those cases to the courts and despite a statute that says American citizens could not be detained without a specific law by the Congress.

But Larry Thompson, a former U.S. Deputy Attorney General, says the United States is facing enemies unlike any other. In his view the Supreme Court failed to take into account "the ticking-bomb scenario" which in his view may require suspending normal standards of criminal justice. "When you deal with the ticking-bomb scenario," says Mr. Thompson, "the criminal justice system is clearly inadequate to deal with a person who is ready to blow us up and who we need to get information out of to prevent the loss of innocent life."

That is why, says Larry Thompson, the government insists on military rather than criminal law procedures when the safety of great numbers of people is at stake.

Another analyst, David Rivkin, a Washington lawyer and a former administration official, points out the Supreme Court essentially agrees with that position. He adds that treating terror suspects as combatants rather than criminals does not deprive them of all legal protection. The military system, he says, has its own due process-related procedures, although they are very different from the civillian ones. "It is not the case that the only way to be fair and just in life is to have access to lawyers and go before Article III judges," says David Rivkin. He also points out that the military is not interested in grabbing innocent people or harassing the president's political enemies. For example, U-S forces detained about 10,000 people in Afghanistan. Fewer than 700 of them ended up in the Guantanamo prison, and over 100 have since been released.

In the meantime, the U.S. government has taken the first steps to comply with the Supreme Court rulings. The Pentagon announced it would hold hearings for the detainees in Guantanamo and inform them they have the right to challenge their detention. The prisoners' fate still depends on many procedural considerations not resolved in the often intricate Supreme Court decisions. But the Court has sent a strong signal that, to quote one of the justices, Sandra O'Connor, "a state of war is not a blank check for the president."

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