9/11: The Supreme Court v the Bush Administration
    By Matthew B. Robinson, PhD           
    Associate Professor of Criminal Justice       
    Appalachian State University           
               
In October 2003, the US Supreme Court issued three opinions directly related to President Bush’s use of military detentions of enemy combatants, including American citizens, as part of the “global war on terror.”  Then, in June 2006, the Supreme Court wrote another decision pertaining to President Bush's authorization of military tribunals.  The four cases are discussed below.

1)    Hamdi et al v. Rumsfeld et al (October 2003)
Yaser Hamdi was born in Louisiana and moved to Saudi Arabis as a child, thus he is an American citizen.  He was captured in Afghanistan by the Northern Alliance for allegedly taking up arms with the Taliban, and declared an “enemy combatant” by the United States.  This was after the Congress passed the “Authorization for Use of Military Force” (AUMF) which empowered the President to “use all necessary and appropriate force” against “nations, organizations, or persons” that he determines “planned, authorized, committed, or aided” in the 9/11 attacks.  Hamdi was detained in the Navy brig in Charleston, SC.

Hamdi alleged his detention was in violation of Fifth and Fourteenth Amendments.  He says he went to Afghanistan to do relief work, that he was there less than two months prior to 9/11, and that he could not have received military training in this time.

The government’s evidence against Hamdi consists entirely on the “Mobbs Declaration” (named after a Defense Department official).  The Mobbs Declaration alleges details about Hamdi’s trip to Afghanistan, his affiliations with the Taliban, and his surrender or an assault rifle.

The District Court found the Mobbs Declaration little more than the say so of the government.  It also ordered the government to turn over its materials for an in camera review and ordered the appointment of a public defender for Hamdi.

The Fourth Circuit Court reversed and noted that Hamdi was captured in an active combat zone so no factual inquiry or evidentiary hearing is needed.  It also said the AUMF is an act of Congress that allows for Hamdi’s detention.  The Circuit Court ruled that Hamdi should only be allowed limited judicial inquiry into the legality of his detention under US war powers.

The Supreme Court held 6-3 that the judgment of the Circuit Court should be vacated and the case remanded (O’Connor, Rehnquist, Kennedy, Breyer, Souter, Ginsburg versus Scalia, Stevens, and Thomas).  It held that every citizen, absent a suspension of the writ of habeas corpus, has the right to habeas corpus relief (p. 23). 

O’Connor, Rehnquist, Kennedy, and Breyer propose a middle-ground between Hamdi’s release and indefinite detention.  They wrote that although Congress authorized Hamdi’s detention in this case, due process demands that citizens held in the US as enemy combatants be given a meaningful opportunity to contest the factual basis for their detention before neutral decision makers.

Souter and Ginsburg said Hamdi’s detention is unauthorized and that he should have the opportunity to offer evidence that he is not an enemy combatant.  They also not that his detention is not necessary because there are numerous criminal laws under which he could be charged.  They also wonder whether Hamdi is a prisoner of war (POW) and whether his detention is in violation of the Geneva Conventions and military regulations.

The plurality thus says American citizens can be held as enemy combatants, but only as long as there are active hostilities.  Further, they do not have the right to a full criminal trial.

In the dissent, Scalia and Stevens said Hamdi should be tried as a traitor through the criminal process.  They note that the President cannot indefinitely detain a person, and that the President should ask Congress to simply suspend the right of habeas corpus.

They claim that the plurality’s ruling is an invented solution, and is part of the “fix it” mentality that wants to make everything turn out right, whether it is legal or not.

Thomas is the only Justice who supports the President’s decision to detain enemy combatants as he sees fit.  He says we must trust the government and the President, and in this case, the President has broad discretion to protect the country from harm.

2)    Rumsfeld v Padilla et al (October 2003)

Jose Padilla is a US citizen apprehended at an airport in Chicago after arriving from Pakistan.  He was held as a material witness by a warrant issued for the District Court of the Southern District of New York as part of a grand jury investigation into 9/11.

Padilla made a motion to vacate the warrant and while it was pending, President Bush issued an order to Secretary of Defense Donald Rumsfeld to designate Padilla an “enemy combatant” and to detain Padilla in military custody.

Padilla was then moved to a Navy brig in Charleston, South Carolina and the warrant that was being used to hold Padilla was vacated by the Court at the request of the government.

Padilla’s counsel filed a habeas petition in the Southern District and the respondents were President Bush, Secretary of Defense Donald Rumsfeld, and Melanie Marr (the brig commander).  He alleged a violation of the 4th, 6th, and 14th Amendments, as well as the Separation Clause.

The government argued that only Marr was the appropriate respondent and thus the Southern District lacked jurisdiction.

The District Court held Rumsfeld’s involvement made him a respondent and that it had jurisdiction over him under New York’s long arm statute.

The Second Circuit Court agreed but reversed that the President has the authority to detain Padilla in military custody.

The Supreme Court held that the Southern District lacks jurisdiction and Padilla should have filed in the District of South Carolina, and that Marr is the only appropriate respondent because she is the person who has custody of Padilla (Rehnquist, O’Connor, Scalia, Kennedy, and Thomas versus Stevens, Souter, Ginsburg, and Breyer).

The case law cited suggests that only the person with immediate custody, i.e. the warden where the inmate is being held, can be the respondent in a habeas writ.  Further, the court issuing the writ must have jurisdiction over the custodian.  The logic of the ruling is that it prevents forum shopping by habeas petitioners.

An interesting issue is did Padilla’s lawyer know where he was being held?  Padilla claims the government gave no notice to vacate the warrant or else he would have filed it elsewhere.

In the dissent, it is noted that special circumstances justify an exception to the rule, that the Secretary of Defense has legal control over Padilla, and that the question is one of venue not jurisdiction (pp. 11-12).  Yet, the dissent cites no case law.
   
3)    Rasul et al v. Bush et al (October 2003)

14 detainees were captured in Afghanistan, including 12 Kuwaitis and 2 Australians.  They were held in Camp X-Ray at Guantanamo, Cuba.  This base is under US lease from Cuba and a treaty that recognizes Cuba’s ultimate sovereignty.

The men claimed they were captured for monetary reward by the Northern Alliance and Pakistan.  They also claim they were not combatants against the US, nor were they terrorists.  The men assert that they have not been charged with any wrongdoing, have not been given counsel, and have not been given access to justice of any kind.

The District Court dismissed the case for want of jurisdiction (because aliens outside of US sovereign territory may not seek habeas relief.  The Court of Appeals affirmed the ruling.

The Supreme Court held 6-3 that US courts have jurisdiction to consider challenges to legality of detention of foreign nationals captured abroad and incarcerated in Guantanamo Bay, Cuba (Stevens, O’Connor, Souter, Ginsburg, Breyer, and Kennedy versus Scalia, Rehnquist, and Thomas).  It held that if a person is held in violation of US laws, the right extends to aliens held in territories over which the US has jurisdiction and that the US has complete jurisdiction and control over the Camp X-Ray in Guantanamo, Cuba (because federal law does not distinguish between US citizens and aliens held in federal custody).

The majority says there is a long history of federal courts granting habeas relief in a wide range of cases.  It notes the since the District Court has jurisdiction of the men, nothing more is required.

Kennedy concurs and says that Guantanamo, Cuba is part of US jurisdiction, and that it is US territory far removed from any hostilities.

In the dissent, it is claimed that this is a violation of precedent, and irresponsible overturning of settled law.  It claims the District Court has no jurisdiction because Guantanamo Bay, Cuba is not within any jurisdiction of any federal court.  They call the ruling clumsy, monstrous, and judicial adventurism.

Further, the ruling complicates the present war by extending the habeas statute to the four corners of the Earth, including to parts of Afghanistan and Iraq that have been captured and thus can lead to habeas appeals (p. 4, 19).

4)    Hamdan v. Rumsfeld (June 2006)

In 2001, Salim Ahmed Hamdan, a Yemeni national, was captured in Afghanistan and turned over to the U. S. military.  In 2002, Hamdan was transported to prison in Guantanamo Bay, Cuba, and more than a year later, President Bush deemed Hamdan eligible for trial by military commission for then-unspecified crimes.  After another year, Hamdan was charged with conspiracy "to commit … offenses triable by military commission.:  Hamdan asserted that "the military commission lacks authority to try him because (1) neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him."

The District Court granted habeas relief and stayed the commission’s proceedings, concluding that the President’s authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war; that such law includes the Third Geneva Convention; that Hamdan is entitled to that Convention’s full protections until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly classified a prisoner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear.

The D. C. Circuit (which included Justice John Roberts, now Chief Justice of the US Supreme Court) reversed.  The appeals court ruled, on the merits, that Hamdan was not entitled to relief because the Geneva Conventions are not judicially enforceable.  The court also concluded that Hamdan’s trial before the commission would violate neither the UCMJ nor Armed Forces regulations implementing the Geneva Conventions.

The Supreme Court disagreed, and held 5-3 (with Chief Justice John Roberts not participating) that President Bush's authorization of military tribunals at Guantanamo Bay violate the Uniform Code of Military Justice and the four Geneva Conventions" (Stevens, Souter, Ginsburg, Breyer, and Kennedy versus Scalia, Alito, and Thomas).

For a summary of the logic of each opinion, see: http://en.wikipedia.org/wiki/Hamdan_v._Rumsfeld#Stevens.27_opinion_for_the_Court


Meaning of Rulings

The net effect of these rulings is that President Bush (and all presidents) have limited power even in times of war.  He cannot order people to be held as “enemy combatants” in secret, without access to lawyers, and with no legal or evidentiary hearing regarding their status.  And those held can challenge their detentions in American courts.

Yet, the rulings bolstered presidential power more than limited it.  The rulings mean the President can label even American citizens as “enemy combatants” and hold them indefinitely, for as long as there is a war on terror.  While they now can challenge the case against them, even American citizens are not entitled to regular criminal trials with normal rules of procedure and evidence.  The President alone has the authority to decide how and when they will be tried, and what due process rules will be followed in their cases.

Further, given that Congress recently passed the Military Commission Act, the President now has legal authority to utilize military tribunals in terrorism cases against "enemy combatants."  The law which authorized this allows:
 For more on this law, see:

President Bush signs Military Commission Act (html format)
Facts of the Military Commission Act (html format)
ACLU letter re: Military Commission Act (html format)


Finally, what happened to these people?

Yaser Hamdi was released after two years of imprisonment.  He gave up his citizenship and returned to Saudi Arabia.

Jose Padilla is still in US custody.  After more than three years, he was finally charged with a crime -- conspiracy to commit terrorism -- and awaits criminal trial.  He was not charged with attempting or planning to set off a dirty bomb in a US city, nor was he charged with attempting or planning to blow up apartment buildings (charges publicly leveled against him by Attorney General John Ashcroft).

Some of the captives from Camp X-Ray have likely been released, as hundreds have!  The first military tribunal started and was halted, but the government won its appeal and now can proceed.

Salim Hamdan awaits military tribunal.