Supreme Court Decision on Enemy Combatants

[selkirk]

Finally some good news! Reposted from the Village Voice. I know it's liberal as hell news paper but it's awfully nice to the see the Supreme Court starting to weigh in on the issue!

 

SCOTUS reminds POTUS what America is fighting for

Bringing the Nation Back on Track

by Chisun Lee

 

They had to grab the wheel. In its blockbuster enemy-combatant decisions last week, the Supreme Court steered a swerving nation back on its original course. No shortcuts in America, the justices admonished the president—here, the right way is sometimes the rockiest.

 

In cases that posed the greatest test to national ideals since the 2001 terrorist attacks, the Court took a path that ultimately was its only choice. Against the Bush administration's vehement objections, it ordered that Yaser Hamdi—a U.S. citizen held incommunicado by the military since January 2002, allegedly for fighting on behalf of the Taliban—be allowed to contest his "enemy combatant" status or go free. And it opened the U.S. courts to some 600 alleged foreign aggressors detained at the U.S. naval base at Guantánamo Bay, Cuba, who would otherwise have no forum in which to proclaim their innocence or protest their treatment.

 

It may not have been immediately obvious why the country's destiny hinged on the right of a bunch of alleged terrorist sympathizers to challenge their indefinite detentions under President Bush's command. But to appreciate the necessity, one only had to imagine a world where the justices had gone the other way. Today the president would be able to lock up anyone he wanted, for as long as he wanted, until he decided the threat of terrorism was over for good.

 

It turned out that only Justice Clarence Thomas wanted to live in that world. His eight colleagues instead placed their faith not in George W. Bush, but in liberty and due process—the fundamental values that have kept this democracy on track through various presidents, wars, and justices. The Rehnquist Court's wholehearted embrace of these essentials revealed just how far toward the edge the administration had veered: so zealous in waging the war on terrorism that it would risk sacrificing the soul of the cause.

 

"It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad," Justice Sandra Day O'Connor wrote in the most influential opinion of the day, granting Hamdi a chance to argue that the government had put away the wrong man. A bare majority of the Court sided with the Bush administration on one point—that the president had the authority, based on a September 2001 decision of Congress, to detain enemy combatants as he saw fit. But only, all the justices but Thomas declared, if the captives met a formal definition of "enemy combatants."

 

The administration had insisted that the commander in chief's mere promise of sound judgment—and no process of proof—was all that should be required to detain citizens and noncitizens, incommunicado and indefinitely, as enemy combatants.

 

The Court's requirement of basic fairness carried over to the decision providing due process rights to the foreign nationals detained at Guantánamo Bay. Although the case of Jose Padilla—the other U.S. citizen currently held by the military as an enemy combatant—was sent back to square one on a technicality, the Hamdi decision suggested Padilla would also receive procedural rights at some point.

 

The Court sought to convince the Bush administration that American justice has as much to do with principle as with force. But the executive branch resisted.

 

"We respect the Court, but obviously we disagree with the findings to some extent," said Justice Department spokesman Mark Corallo last week in an interview. Government lawyers were combing the opinions to discern how little they could change in their detention policies and still comply with the rulings. Dismissing the notion that the president might regret having taken such a hard line on individual rights, Corallo said, "We looked at the issues, and we took a stance. This is a war."

 

This trench talk makes the Court's decision, to stick by "the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law," seem that much more courageous. After all, should Hamdi or someone like him be released and cause harm, it is certain that many will pin the blame on the Court.

 

The justices stressed that they were battling a different kind of harm. "[A]s critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security . . . an unchecked system of detention carries the potential to become a means for oppression and abuse," warned O'Connor, joined by Chief Justice William Rehnquist and justices Anthony Kennedy and Stephen Breyer. Raising the specter of presidential tyranny, they emphasized that "the position that the courts must forgo any examination of the individual case . . . serves only to condense power into a single branch of government."

 

Court watchers had predicted some chest-puffing, simply given the reputation of these particular justices for institutional pride. But, said Laurence Tribe, Harvard constitutional law expert, "The Court goes much further than saying the judiciary must have the last word—saying that, in the face of the strongest possible set of claims on the part of the executive, in circumstances with an unconventional enemy, we still have to stand up for the rule of law."

 

Refusing to take the president's word for it, O'Connor said that "the circumstances surrounding Hamdi's seizure cannot in any way be characterized as 'undisputed.' " The government claims the detainee was caught fighting for the Taliban in Afghanistan and was moved by allies into U.S. custody. Hamdi's father contends that the then 20-year-old had traveled abroad alone for the first time, on a humanitarian mission, and likely fell into the clutches of local bounty hunters.

 

Bush's lawyer gave the Court this answer to the factual ambiguity, at oral argument in April: "It may not seem what you think of as traditional due process . . . but the interrogation process itself provides an opportunity for an individual to explain that this has all been a mistake." It is impossible to know how much subsequent revelations in the U.S. military torture scandal influenced the justices, but the majority found the administration's version of a fair hearing utterly lacking. "An interrogation by one's captor . . . hardly constitutes a constitutionally adequate factfinding," wrote O'Connor.

 

According to Tribe, "When they hear an argument in the morning where the executive branch says, 'Trust me,' and then they hear on the evening news to the contrary, no justice can reasonably say they are unaffected by that."

 

In the Hamdi case, the Court left the precise details of a fair process for the lower courts to decide, stopping well short of requiring the heightened protections of a standard criminal proceeding. But it mandated the basic elements: "a meaningful opportunity" to contest the government's story before a "neutral decisionmaker."

 

Even the Court's steaksauce to the administration on its authority to hold Hamdi—if he is in fact found to be an "enemy combatant"—was less a salute to the executive's prerogatives than an acknowledgement of the democratic will. Declining to find unilateral, prolonged detention among the inherent powers of the president, the Court held instead that a congressional resolution of September 18, 2001, had authorized the president to use detention as part of the "necessary and appropriate force" in defeating terrorists.

 

Narrowing still further, the Court defined "enemy combatant" in its Hamdi ruling quite specifically: "individuals legitimately determined to be Taliban combatants who 'engaged in an armed conflict against the United States' . . . captured in a foreign combat zone." The category seemed to exclude citizens detained on U.S. soil.

 

And even when legitimate, O'Connor stressed, the president's authority to detain enemy combatants is not without an endpoint. "If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding [of executive detention authority] may unravel."

 

Padilla, known as the "dirty bomber," was arrested by the FBI in Chicago in May 2002 and then moved to New York, originally as a witness in a radioactive-attack plot. He was moved again, to the same South Carolina navy brig as Hamdi, where he will have to wait longer for his day in court. A 5-4 majority, led by Chief Justice Rehnquist, refused to address Padilla's substantive claim of illegal, incommunicado detention last week, because of a technical mistake in the complaint. The Court said Padilla's lawyers would have to refile the challenge in a federal court in South Carolina, not New York. The lawyers plan to do so within the next two weeks and are optimistic about Padilla's hopes of challenging the government's allegations before a neutral party, given that Hamdi—captured, allegedly armed, on a foreign battlefield—was granted at least that much.

 

Indeed, four justices dissented passionately from the majority's decision to avoid Padilla's constitutional claims on a technicality. "At stake in this case is nothing less than the essence of a free society," wrote Justice John Paul Stevens. Even the technical ruling permitted too much, he insisted, arguing that the majority was essentially legitimating the military's "secret transfer" of a U.S. citizen in order to "obtain a tactical advantage."

 

Stevens's concern did not seem too exaggerated, considering an exchange between the Court and Bush's lawyer at oral argument in the case in April. The Court asked, "So what is it that would be a check against torture? . . . What's constraining? . . . Is it just up to the goodwill of the executive?" The administration answered, "The fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement and overseeing of that authority."

 

The possibility of abuse in executive discretion took on new urgency in the months following that conversation, as allegations of systemized torture arose regarding U.S. military prisons in Iraq. The Court's 6-3 ruling last week in favor of letting some 600 noncitizens at the Cuban base challenge the factual basis for their detentions may reflect a heightened unease over the administration's credibility. Moreover, defense officials have admitted, most prominently in a recent New York Times report, that initial screenings of the detainees were far from precise, and that interrogations have been amateurish and disorganized.

 

Until the ruling last week, the Guantánamo captives lay beyond the reach of any justice system in the world, a state of lawlessness that the administration strenuously advocated. But the six-justice majority tossed aside the president's contorted argument that because the land is technically part of Cuba, the U.S. military cannot be said to hold sovereign power. The U.S. wields "exclusive jurisdiction and control" there, the justices pointed out, and that is enough to have to answer for the ongoing detentions.

 

Although legal observers on both sides of the argument had fretted over the distinction—or lack thereof—between the rights of citizens and noncitizens, the Court ultimately found a way to promote fairness as a basic human value. It left the details of new procedures to the executive, but it left no doubt as to the shift in principles that would be required from now on.

 

None of the justices disputed that the commander in chief should wield extraordinary power in a time of war and terrorism. But in nearly one voice, they urged that a democracy depends not just on the strength of its leader, but on a system that holds that leader accountable to the principles of the people.

[Dru]

Even the Court's steaksauce to the administration on its authority to hold Hamdi—if he is in fact found to be an "enemy combatant"—was less a salute to the executive's prerogatives than an acknowledgement of the democratic will. Declining to find unilateral...

 

the steaksauce? oh my otter!

[slothrop]

Huh-huh, "SCOTUS". I guess the First Lady is the FLOTUS, then.

[gotterdamerung]

Congrats liberal tweaks. Your piece of shit faggified liberal fucknut courts are once again weakening the fiber and backbone of this country by allowing dirtbags to kill Americans, roam free, and then sue our country. Celebrate by playing some skin flute would ya?

 

Oh and before any of you chime in with your wackenhut responses. Fuck you.

[Loose_Brie]

Congrats liberal tweaks. Your piece of shit faggified liberal fucknut courts are once again weakening the fiber and backbone of this country by allowing dirtbags to kill Americans, roam free, and then sue our country. Celebrate by playing some skin flute would ya?

 

Oh and before any of you chime in with your wackenhut responses. Fuck you.

Whaaaaaaa, Whaaaaaa. Mommy make the bad liberals stop.

[glacier]

Liberal court(?):

 

Renquist nominated by Reagan

Stevens nominated by Ford

O'Connor nominated by Reagan

Scalia nominated by Reagan

Kennedy nominated by Reagan

Souter nominated by GHW Bush

Thomas nominated by GHW Bush

Ginsberg nominated by Clinton

Breyer nominated by Clinton

 

the court should be referred to as the Reagan Memorial Supreme Court.

[murraysovereign]

Yeah, it's hard to argue that line-up is anything other than a conservative dream team, with a couple of dissenting opinions tossed in for effect.

 

Maybe Gottitdamnwrongagain is actually upset that the country and its institutions are governed by a "piece of shit faggified liberal fucknut constitution" that is "weakening the fiber and backbone of this country" by forbidding Americans to arbitrarily imprison, torture and kill people that look different, eat funny foods, or maybe speak other languages.

 

Clearly, the ability to lock people up indefinitely, without charge or even clearly founded suspicion, all the while subjecting them to varying degrees of torture, degradation and humiliation, and possibly even killing the odd one just for the Hell of it, are all the things that made America great in the first place, and removing those treasured freedoms will inevitably bring about the collapse of the Republic.

[Ducknut]

Gotter

 

I think you have been over there so long that you have forgotten what you are fighting for and what our country stands for. Granted the accused might not believe in our concept of liberty for all, nevertheless we are a country of laws to protect that concept. The accused US citizens should be tried under those laws.

[ChrisT]

Liberal court(?):

 

Renquist nominated by Reagan

Stevens nominated by Ford

O'Connor nominated by Reagan

Scalia nominated by Reagan

Kennedy nominated by Reagan

Souter nominated by GHW Bush

Thomas nominated by GHW Bush

Ginsberg nominated by Clinton

Breyer nominated by Clinton

 

the court should be referred to as the Reagan Memorial Supreme Court.

 

I believe Renquist was actually nominated by Nixon in 1972. There was an interesting article in the NYTimes day before last. He's nearly 80 but shows no signs of slowing down and in fact hopes to beat the record of longest serving supreme court justice.

[cj001f]

Gotterdamrung-

As someone who is bearing arms in the service of a cause/nation, but aren't in uniform, couldn't you be classified as an "enemy combatant"?

[foraker]

Seems the only freedom he's fighting for is the freedom to shoot things/people without having to go to prison.

[murraysovereign]

I believe Renquist was actually nominated by Nixon in 1972.

 

Renquist was named to "The Supremes" by Nixon, then was named Chief Justice by Reagan.

[Fairweather]

The obvious solution: shoot them on the battlefield.

 

I agree, however, with the court's decision re: Jose Padilla . The guy is an american citizen (like it, or not!) and is due his day in an american court. Fuck the rest of 'em. Let them rot in Guantanamo until this war is over.

Edited July 8, 2004 by Fairweather

[bDubyaH]

mmmmmm....freedom. can't have it without justice FOR ALL. the court got this one right

[gotterdamerung]

You guys sound pathetic. Your couch has left a firm imprint on your asses and your weakened brain stem has rotted to the point where it is jelly. You follow the letter of the law because you are spineless and stupid. And if you don't know me personally then why don't you quit making assessments of what I do or what I have done. I'd prefer that you kiss my ass like every other motherfucker that talks shit on this site and then gets educated in person. Pussies.

[johndavidjr]

Gott: Your subtle mind & language cuts like a razor; undoubtedly due to your long study of Nietzshe & appreciation of Wagner.

[foraker]

Too bad it's not Vietnam where you can pay to get all little action, huh? Sounds like you're in serious need of some.

[bDubyaH]

You follow the letter of the law because you are spineless and stupid.

Actually I follow the letter of the law because:

a. Prison sounds really lame, the climbing sucks.

b. I have a firm belief that if we are going to send in troops and have people die then the least we can do is uphold the reason for those deaths. Namely personal liberties. Little Jeffi Dahmer and Timothy McVeigh got trials, so should anyone accused of being an enemy combatant. Hell look at how many death row inmates have been found innocent and pardoned, and those are after going through the court system. So how many folks are innocent after our gov't just declares them guilty?

No, the "spineless and stupid" are not those following the letter of the law, particularly this law, the "spineless and stupid" those who do not step back and look at the big picture and see that this kind of law is what is really worth fighting for.

[gotterdamerung]

Trolling trolling...over the bounty sea...LMFAO

 

 

Its been too quiet around here lately. I'm just stirring up the pot. You can all take your panties out of a bunch now.

 

I also believe that there were reasons some of these individuals were held incommunicado and there were good reasons for it. You don't know half of what you think you know. Padilla could have easily passed information via an attorney or a news conference.