After two years of litigation, the U.S. Supreme
Court is finally set to decide whether the executive branch of the US government
may detain alleged "enemy combatants" indefinitely without any judicial review
of their status.
Three cases – one of them argued before the nation's highest court last week
and the other two due to be presented here Wednesday – will determine the extent
of US presidential power to detain both US citizens and foreign nationals in the
"war on terrorism."
Dozens of independent groups – including human rights and relief
organizations, former prisoners-of-war and legal associations – have filed
"friend of the court" briefs, most of them opposed to the government's position.
While the nine-judge court will not issue its ruling until later this spring,
civil-liberties advocates are hopeful that a majority of justices will insist
that the executive branch cannot prevent detainees from gaining access to
federal courts to determine whether the government has sufficient grounds for
"It seems four of the justices are strongly on the side of detainees (held)
at the US Guantanamo (Bay naval base in Cuba) on the question of whether US
courts have jurisdiction," according
to Deborah Pearlstein, director of the US law and security program at Human
Rights First (HRF), formerly known as the Lawyers Committee for Human Rights.
Reflecting on the oral arguments before the Court last week, she added that
two other justices – Sandra Day O'Connor and Anthony Kennedy – also indicated
skepticism about the case put forward by Bush administration Solicitor-General
Ted Olson, that the executive branch's powers to detain "enemy combatants"
should be virtually unlimited during war.
"(They) will be swing votes," Pearlstein said of the two justices who were
appointed by former Republican presidents Richard Nixon and Ronald Reagan,
The three cases, which are being closely watched by human rights activists
and foreign ministries around the world, are the first of a slew of hearings
concerning the fate of "enemy combatants" held by the Pentagon in its "war on
terror" and pending trials before specially created military commissions whose
proposed procedures have been widely criticized for failing to meet
international standards of due process.
Some 700 suspected operatives of the al-Qaeda terrorist group or the former
governing Taliban regime in Afghanistan have been held at Guantanamo Bay since
their capture during and after the U.S.-led military campaign in Afghanistan in
late 2001. About 100 of them, including some deemed harmless, have been returned
to their home countries, leaving 595 from more than 40 countries still in
Quoting a senior Pentagon official, the
Boston Globe reported Sunday that the administration lacks sufficient
evidence on most of the detainees to try them before a military commission but
that they are considered too dangerous or too valuable as possible intelligence
assets to be released within the foreseeable future.
Last week's cases were brought on behalf of 16 Guantanamo detainees who
contend that they were innocent combatants picked up or delivered to US military
authorities in Afghanistan or Pakistan by mistake.
Under the Geneva Conventions, prisoners of war (POWs) are entitled to appeal
their status to an independent tribunal, but, in a highly controversial
decision, the Bush administration decided in early 2002 that the Guantanamo
detainees were not entitled to POW status. As a result, lawyers acting on behalf
of the 16 – two of whom have since been returned to Britain – filed habeas
Citing a precedent that resulted in the imprisonment and execution of German
saboteurs during the Second World War, Olson argued that federal courts lacked
jurisdiction over detainees held at the Guantanamo base because it is not on US
He also argued that the executive branch enjoys much greater detention powers
during a time of war, and warned that any judicial review "would place the
federal courts in the unprecedented position of micro-managing the executive's
handling of captured enemy combatants from a distant combat zone" in violation
of the constitutional "separation of powers" doctrine that allocates
responsibilities to each branch of government.
But Olson's argument provoked a battery of questions from six of the
justices, including O'Connor and Kennedy, about whether detainees could be
placed in a "no law" zone without recourse to any judicial authority and where
they were effectively deprived of all basic rights.
Olson might have an even more difficult time in Wednesday's cases, which both
involve US citizens who have been held for two years without charge at a US Navy
brig in South Carolina. As "enemy combatants" – a phrase that has no legal
precedent – both were denied the right to consult with a lawyer until quite
recently or to contest their detentions in court.
Yaser Hamdi, who was captured by the Northern Alliance in Afghanistan before
being transferred to Washington's custody, acquired US citizenship by being born
in the United States to Saudi parents, who then returned to their homeland.
An appeals court in Virginia held last year that Hamdi could continue to be
held after the Pentagon submitted a nine-paragraph affidavit asserting that he
had been captured while fighting for the Taliban. Whether that document
constituted adequate grounds for his indefinite detention without charge or
whether Hamdi should be granted the right to rebut the government's affidavit in
court will be the focus of argument Wednesday.
The companion case of Jose Padilla, who was arrested at Chicago's main
airport two years ago on suspicion of plotting with al-Qaeda to detonate a
radioactive device, might be even more difficult for the administration to win,
according to civil liberties experts, if only because he was detained so far
from the actual battleground.
In that case, an appeals court in New York ruled Padilla should be granted
the chance to rebut the government's case, which is based on confidential
sources, and that, absent a law approved by Congress authorizing such a
detention, the president has no authority to act on his own.
In all three cases, the administration argues that the determination of enemy
combatant status is a "quintessentially military judgment, representing a core
exercise of the commander-in-chief authority" that should not be reviewed by the
"Not since the internment of Japanese American citizens during World War II
have we seen such a far-reaching assertion of presidential power," said Ralph
Neas, president of the civil-libertarian People for the American Way Foundation,
which has filed a joint amicus brief with the right-wing Rutherford Foundation.
While many experts believe that the fact that Hamdi and Padilla are citizens
make it more probable they will prevail in their cases before the Court, some
predict the majority of justices will not make such a distinction.
"The (US Constitution's) Bill of Rights ... does not distinguish between
citizens and non-citizens," according to David Cole, who teaches law at
Georgetown University here.
"It extends its protections in universal language, to 'persons', 'people' or
'the accused'. The framers considered these rights to be God-given natural
rights, and God didn't give them only to persons holding American passports."