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The Rights of Detainees


The Boston Globe, Jun. 29, 2004

With two rulings that struck decisively at Bush administration assertions of sweeping power over combat detainees, the Supreme Court yesterday kept the Bill of Rights from being a collateral victim of the war on terror.

The Bush administration had claimed the right to hold enemy combatants captured in Afghanistan indefinitely and to deny them any right to lawyers to challenge their detention. In both cases, the court ruled that detainees did have the right to counsel.

One case involved an American citizen, Yaser Esam Hamdi, who was captured by U.S. allies in the war in Afghanistan and is now being held in a military prison in South Carolina. The other case involved almost 600 foreign nationals being held at the Guantanamo Bay base in Cuba as suspected Al Qaeda members or Taliban fighters from the war in Afghanistan.

The court sent a third case involving alleged 'dirty bomber' Jose Padilla back to lower courts on a technicality.

In her 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.' In that case, the court specifically upheld the right of the government to detain citizens and noncitizens as enemy combatants, based on legislation passed by Congress one week after the attacks of Sept. 11, 2001. But O'Connor's opinion held that Hamdi must be given a 'meaningful opportunity' to contest the basis for his imprisonment before a neutral party.

Hamdi's detention is based on a nine-paragraph declaration by a Pentagon employee, Michael Mobbs, that Hamdi has never been allowed to challenge. O'Connor chastised the Fourth Circuit Court, which had ruled against Hamdi's bid for counsel, for referring to Mobbs's statements as 'undisputed.' Until now, she pointed out, Hamdi has had no chance to dispute the statement.

O'Connor also denied the government the right to hold an enemy combatant until the conclusion of something as ill-defined as the war on terror. But she said that circumstances in Afghanistan are still unsettled enough to justify further detention.

In the Guantanamo case, the court both held that noncitizen enemy combatants have legal rights and that U.S. federal courts do have jurisdiction over the base, despite its extra-territorial status. Administration lawyers had tried to define it in effect as a legal no-man's-land. In both cases, the administration wanted to exclude lawyers in part to avoid any hindrances to interrogating prisoners. The recent evidence of interrogation abuses at prisons in Afghanistan and Iraq shows the importance of not granting the administration the free hand it has sought with all detainees.

The practical effects of yesterday's rulings are unclear. O'Connor referred to the need of judges in future such cases to consider both 'national security' matters and the constitutional safeguards of 'essential liberties that remain vibrant even in times of security concerns.' The rulings reaffirm the basic rights of detainees to have counsel, and of judges to review executive actions - rights that the administration wanted to deny.