Rulings afford detainees their day in court

WASHINGTON -- The Supreme Court yesterday sharply curtailed President Bush's power to hold prisoners without trial in the war on terrorism, opening the courthouse doors to hundreds of detainees at Guantanamo Bay and also ordering judicial review of the military's justification for holding a US citizen as an ''enemy combatant."

In the most important terrorism rulings since the attacks of Sept. 11, 2001, the court pushed back the line that the Bush administration had drawn between national security and individual rights. It held that civilian judges have jurisdiction to oversee military prisoners and insisted that the government show why it is holding each detainee, who must in turn have an opportunity to challenge that evidence in court with help from a lawyer.

''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 for the plurality in the case of Yaser Esam Hamdi, a US citizen of Saudi descent who has been held since he was captured in late 2001 in Afghanistan allegedly fighting with the Taliban militia.

Human rights lawyers who brought two separate challenges on behalf of foreign nationals, Britons, Australians, and Kuwaitis held at Guantanamo Bay hailed the rulings as a victory for the rule of law.

''The lesson of the decision is that there is no prison beyond the reach of domestic law," said Joseph Margulies, a lawyer who represents several Australian and British detainees. ''The court holds emphatically that though the war power may give the United States the authority to seize people, it may not place them beyond the reach of legal process. . . . Even in a time of conflict, this is a country that will place the military under civilian law."

Although the Guantanamo cases dealt with whether US courts have jurisdiction over foreign detainees held in Cuba, while the Hamdi case dealt with how much evidence the government must show to hold a US citizen as an enemy combatant, both cases served as a rebuke to Bush administration policies, human rights activists said.

But that victory was not absolute: The court affirmed that the president can detain accused enemy combatants, including US citizens, without trial or charges for the duration of the war on terror as long as the government produces ''credible evidence" before a neutral party that they are enemy fighters.

Four justices, who asserted Congress had authorized the detentions, insisted on the additional safeguards to allow detainees to present evidence that the government has made a mistake.

Justice Clarence Thomas said the commander in chief had the power on his own, without the safeguards.

In a statement for the Bush administration, the Justice Department focused on the court's upholding of the detentions, but they noted that the government would review the decision to ''determine how to modify existing processes to satisfy the court's rulings" with respect to procedural rights for enemy combatants to contest their detention.

''The Justice Department is pleased that the US Supreme Court today upheld the authority of the president as commander in chief of the armed forces to detain enemy combatants, including US citizens," said Mark Corallo, a department spokesman.

''This power, which was contested by lawyers representing individuals captured in the war on terror, is one of the most essential authorities the US Constitution grants the president to defend America from our enemies."

Corallo said the detentions were necessary ''to prevent them from continuing to wage terror and war, as well as to gather intelligence to thwart further terrorist assaults."

Barbara Olshansky, deputy legal director of the Center for Constitutional Rights, which brought a case on behalf of Kuwaiti detainees at the US Naval Base in Cuba, said the next step would be for the government to respond to petitions that lawyers had long ago submitted to courts on behalf of individual detainees, but were on hold pending the Supreme Court's decision on jurisdiction.

At the same time, she said, the lawyers would be petitioning within the week to be granted access to their clients. Margulies and the Center for Constitutional Rights together are representing about 60 of the roughly 600 detainees still being held in Cuba.

''This ruling definitely means that these individuals being held there have the right to counsel and we have a right to access to our clients," she said. ''That means we can actually meet with them to learn the complete circumstances of their arrest and detention. That will enable us to bring a claim on their behalf to challenge the legality of their detention in federal court."

It was not clear from the rulings what procedures would be used to handle detention challenges by the enemy combatants. The majority on Guantanamo did not specify what should happen once a detainee's challenge is in federal court.

In the Hamdi decision, O'Connor suggested that a citizen-detainee may face significant limits on how he may challenge his detention beyond the core protections of notice of the evidence against him, a right to counsel, and a ''fair opportunity to rebut the government's factual assertions before a neutral decision maker." The court did not say whether the decision maker would be a military tribunal.

But O'Connor wrote that because of the ''uncommon potential to burden the executive at a time of ongoing military conflict," the proceedings may little resemble an ordinary trial beyond those basics. For example, hearsay evidence may be acceptable, and the burden of disproving the government's contention rests with the detainee.

Still, Harold Koh, dean at Yale Law School and a former assistant secretary of state for human rights, called the sweeping decision ''a huge blow for the government" and ''a stunning rebuke to claims of unfettered executive authority."

''The pressure is now toward disclosure, toward judicial review, and toward congressional authorization, and these are all things the government has resisted until now," Koh said. ''The government should be able to read the writing on the wall and, if it doesn't want to get slapped down again, move toward" those principles in its treatment of war-on-terror prisoners.

Writing for the 6-3 majority in the two Guantanamo cases, Justice John Paul Stevens notes that part of the reason that US courts have jurisdiction over the base is that the United States has had exclusive jurisdiction and control of that Navy base through a perpetual lease with Cuba for more than a century.

Dissenting were Thomas, Chief Justice William Rehnquist, and Justice Antonin Scalia.

But, ambiguously, Stevens also cites four factors in reaching the decision that remain true for war-on-terrorism prisoners held elsewhere overseas: They are not citizens of countries formally at war with the United States; are mostly not charged with a crime or have access to a tribunal; deny wrongdoing; and have been held for more than two years.

David Rivkin, a former associate White House counsel in the first Bush administration, said the ability of the government to effectively interrogate detainees in the war on terrorism will be severely compromised by the rulings, though he predicted that few enemy combatants would succeed in getting released as a result of the court-ordered reviews.

''How are you going to interrogate anyone?" he said. ''The bad guys are going to learn about this soon enough, and then with every Al Qaeda and Taliban and Saddam Fedayeen we take prisoner [in the future] and try to interrogate, the first thing they're going to say is 'I want a lawyer' and then what the heck are you going to do? . . . It's going to create a lot of problems and cause a lot of harm."

In the dissenting opinion, Scalia called the Guantanamo jurisdiction decision ''a monstrous scheme in a time of war" and ''judicial adventurism of the worst sort."

Yet, in a demonstration of the complexity of the set of decisions, Scalia and Stevens joined together in the Hamdi decision to strongly reject applying the enemy combatant doctrine to US citizens, saying such people should either be tried for treason or released.

The Hamdi decision was technically 6-3 because Justices David Souter and Ruth Bader Ginsburg filed a concurrence with O'Connor's opinion for four justices -- herself, Rehnquist, Anthony M. Kennedy, and Stephen G. Breyer. Souter and Ginsburg agreed with the plurality that Hamdi's case should be sent back to lower courts for a new review with greater safeguards even though they said they believed that Congress had authorized his indefinite detention when it approved the use of force against the perpetrators of the Sept. 11 attacks.

The court did not reach a substantive decision in the other major US citizen combatant case -- that of Jose Padilla, who was arrested at Chicago's O'Hare International Airport and accused of plotting to blow up skyscrapers and set off a dirty bomb for Al Qaeda -- ruling, 5 to 4, that his case should have been filed not in New York, but in South Carolina, where he is being held in a Navy brig.