- The Washington Times - Tuesday, June 29, 2004

The Supreme Court yesterday reaffirmed that U.S. courts have legal authority to rule on challenges brought by foreign nationals held at Guantanamo Bay. The Bush administration had insisted otherwise.

The high court also granted access to the courts to Yaser Esam Hamdi, a U.S. citizen captured in Afghanistan. But the president was backed some in that case, as the justices acknowledged that Congress had given him authority to hold the American as an enemy combatant.

The high court effectively side-stepped a third case — that of “dirty bomb” suspect Jose Padilla, another American held as an enemy combatant — on grounds it was improperly filed and must go back to lower courts to start again.

In a 6-3 ruling, the Supreme Court said foreign nationals at the U.S. Naval Base Guantanamo Bay, Cuba, should be allowed to challenge their treatment in U.S. courts.

“Federal court jurisdiction is permitted in these cases,” said a majority opinion by Justice John Paul Stevens and joined by Justices Sandra Day O’Connor, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Justice Anthony M. Kennedy concurred.

The dissenters were Chief Justice William H. Rehnquist and Justices Clarence Thomas and Antonin Scalia, who essentially agreed with the Bush administration’s claims that Guantanamo lies beyond the jurisdiction of U.S. courts.

The case was brought by current and former prisoners at a massive prison built on the naval base since the September 11 attacks. The Bush administration deems some 600 suspects held there as enemy combatants.

The majority were captured in Afghanistan during the U.S.-led drive to topple the al Qaeda-supporting Taliban regime. Mr. Hamdi and Padilla also are deemed enemy combatants, though they are not held at Guantanamo.

With the exception of lengthy interrogations of men detained at the prison, the administration has afforded enemy combatants a similar set of rights to those guaranteed to prisoners of war by the Geneva Conventions.

But officials also claim enemy combatants are held outside of constitutional protections given to ordinary criminal suspects, and Defense Secretary Donald H. Rumsfeld has announced plans to try those held at Guantanamo through military tribunals.

The Supreme Court was essentially united on the issue of whether others, particularly Americans held in places other than Guantanamo, should get the right to have their cases reviewed by the U.S. justice system.

In the Hamdi case, while separate opinions were joined by Justices Souter, Ginsburg, Scalia and Stevens, all of the justices except for Justice Thomas said Mr. Hamdi had the right to a hearing before the lower courts.

“We have long since 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,” said a majority opinion, written by Justice O’Connor and joined by Chief Justice Rehnquist and Justices Kennedy and Breyer.

Mr. Hamdi, who is of Saudi descent, was born in Louisiana. Having been arrested in 2001 in Afghanistan, he was shifted about by U.S. military forces, at one point being shipped to Guantanamo for detention.

When authorities learned Mr. Hamdi was born in the United States, a petition for habeas corpus, which forces the government to say why they have arrested someone, was filed on his behalf.

The case rose to the Supreme Court after a federal appeals court denied the habeas petition, ruling the Bush administration was justified in detaining an American indefinitely.

Justice Scalia and Justice Stevens said if the government had a case against Mr. Hamdi it should charge him as a criminal, perhaps even a traitor. Citizens cannot be held as enemy combatants, each man wrote.

But in one bright spot for the government, a majority of five justices rejected that view and held that the president had authority to hold Mr. Hamdi as an enemy combatant, though Mr. Hamdi still had the right to have courts review Mr. Bush’s decision.

Highlighting that holding, Justice Department spokesman Mark Corallo said, “The military detains enemy combatants to prevent them from continuing to wage terror and war, as well as to gather intelligence to thwart further terrorist assaults.

“Without the ability to detain these dangerous individuals, the American people and our soldiers in combat would face even greater danger from our terrorist enemies.”

Legal analysts have largely lumped the Hamdi case with that of Padilla, who was arrested in the United States.

FBI agents apprehended Padilla, a former Chicago gang member and convert to Islam, at O’Hare International Airport in 2002 on suspicion he was planning a radiation-spreading “dirty bomb” attack.

His lawyers say he has been unjustly held more than two years at a South Carolina Navy brig. But the Supreme Court declined to rule yesterday, on the grounds that the case improperly named Defense Secretary Donald H. Rumsfeld instead of a lower-level military official overseeing the brig.

However, Padilla supporters did not consider the development a victory for the administration.

“You have to look at Padilla in regards to the Hamdi decision,” said Deborah N. Pearlstein, director of the U.S. Law and Security Program at Human Rights First, an advocacy group that filed briefs with the Supreme Court on behalf of Padilla, Mr. Hamdi and the prisoners held at Guantanamo Bay.

“I’m sure Mr. Padilla will file again in a lower court, and the lower court is going to be constrained by the Supreme Court’s ruling in Hamdi, acknowledging 8-1 that U.S. citizens in government custody have due process rights.”

“I’m popping champagne bottles about Hamdi, no question,” she added.

Virginia federal public defender Frank Dunham, who made the oral argument on Mr. Hamdi’s behalf before the Supreme Court in April, said that he too was popping champagne.

“I’m popping it all over the place, I ain’t got enough champagne to pop,” said Mr. Dunham, who describes himself as “a Republican who’s a die-hard civil libertarian.”

“The court resoundingly said that when the executive decides to hold someone as an enemy combatant, the court is not reduced to being a potted plant,” Mr. Dunham said. “The court has a right to question the basis on which the detention is founded. More importantly, the detainee has a right to be heard with counsel before a neutral fact-finder.”

Miss Pearlstein stressed the ruling was “not a victory for terrorism suspects,” but “a victory for law and the power of the courts to check the executive.”

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