The New York Times
June 29, 2004

 

THE DETAINEES

For Prisoners, Only Certainty Is Right to a Court Hearing

By ADAM LIPTAK
 

 

In a matter of days, lawyers for prisoners held at Guantánamo Bay and in a naval brig in Charleston, S.C., will begin to test the limits of the victories they won in the Supreme Court on Monday.

All of the prisoners now have the right to tell their stories to a court. But how and where that will happen is not entirely clear, and the Supreme Court gave the lower courts only limited and conflicting guidance.

In the cases of the two American citizens held as unlawful enemy combatants, the Supreme Court struggled to describe what an appropriate proceeding would look like. Justice Sandra Day O'Connor suggested in the case of Yaser Hamdi, who was captured in Afghanistan, that military tribunals might be appropriate forums, that they might consider hearsay evidence typically barred from criminal cases and that the ordinary burden of proof might be shifted from the government to the prisoner.

But that view attracted only three other votes.

For the more than 600 prisoners at Guantánamo, the court did little more than order the government to respond to the 14 petitions before it.

"Whether and what further proceedings may become necessary after the respondents make their response," Justice John Paul Stevens wrote for the majority, "are matters we need not address now."

Even as the short-term guidance in the cases was sketchy, their long-term implications may turn out to be enormous. Lurking in the 10 separate opinions in the three cases were some broad propositions about the temporal and geographic limits of the fight against terrorism.

Some justices suggested that detentions may not exceed the duration of traditional combat operations, seeming to reject the notion that people may be held for as long as efforts to combat terrorism persist. Others said that the extraction of information from prisoners was not by itself enough justification to hold prisoners for long periods.

And several justices seemed to agree that the court had extended the right to file suits challenging the legality of detentions not only to Guantánamo Bay but to anywhere in the world that the United States holds people of any nationality captive away from the battlefield.

Lawyers for the Center for Constitutional Rights, which represents the 14 Guantánamo prisoners in the Supreme Court case and scores of others detained there, said they would soon try to meet with their clients and file further petitions, perhaps in the form of a class action. The center of legal activity in the case will almost certainly continue to be the Federal District Court in Washington, where the original petitions were filed.

This flood of litigation, perhaps accompanied by a series of evidentiary hearings attended by the individual detainees, alarmed some of the justices.

"Each detainee undoubtedly has complaints - real or contrived," Justice Antonin Scalia wrote in his dissent in the Guantánamo case, joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas. "The court's unheralded expansion of federal-court jurisdiction is not even mitigated by a comforting assurance that the legion of ensuing claims will be easily resolved on the merits."

The second man called an unlawful combatant, José Padilla, whose case is generally thought stronger than Mr. Hamdi's, was instructed to try again, but in a different federal district court.

"The court says it wants a do-over," said Jonathan Freiman, one of his lawyers, "so we'll refile in South Carolina and do it over."

Though Mr. Padilla was the only prisoner to lose his case in the Supreme Court, the loss was only a nominal one, Mr. Freiman said.

"The court made it clear," he said, "that at a bare minimum an American citizen in military prison has the right to a lawyer and a day in court. It's quite possible that the court will find that an American citizen picked up in a civilian setting cannot be put in prison at all without criminal charges being brought against him.''

The decision in the Hamdi case suggests that Mr. Padilla may not qualify as an unlawful combatant at all. For purposes of the Hamdi case, at least, the four-justice plurality considered only people "part of or supporting forces hostile to the United States or coalition partners" who "engaged in an armed conflict against the United States" as potentially subject to detention as unlawful combatants.

Mr. Padilla, who was captured at an airport in Chicago and who has been accused of contemplating various terrorist acts, may not fit that definition.

In the Hamdi case, Justice O'Connor gave the first inkling of the Supreme Court's thinking about the temporal limit of what the administration calls the war on terror. Because that war could last, she said, for generations or longer, "Hamdi's detention could last for the rest of his life."

While she did not reject that possibility outright, she appeared to rely heavily on the fact that the war in Afghanistan is continuing, suggesting that the legal landscape for people like Mr. Hamdi and Mr. Padilla would be radically different once traditional combat there ends.

That is so, she wrote, because the purpose of detaining unlawful combatants is to prevent them from returning to the field of battle to take up arms once again.

The most lasting implication in the decisions may be the apparent extension of the right to habeas corpus to noncitizens held abroad.

"From this point forward," Justice Scalia wrote in the Guantánamo decision, referring to the more than 600 prisoners there, "federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the executive's conduct of a foreign war."

Though the Supreme Court considered no alternative to suits in the federal courts to consider the claims of the Guantánamo detainees, Justice O'Connor wrote that "an appropriately authorized and properly constituted military tribunal" might hear Mr. Hamdi's challenge. It appears that no such tribunals are currently available.

Military commissions were created by executive order in 2001 to try unlawful enemy combatants, but they are not authorized to try American citizens.

Deborah Sontag contributed reporting for this article.