The U.S. Supreme Court rarely gets an opportunity to pronounce on the delicate balance between national security and individual liberties. It is rarer for it to do so in the context of war, and even rarer when the case involves non-citizens. But that is precisely what the Supreme Court did in the final days of its 2003-2004 term. It affirmed the rights of non-citizens held in custody by the government as alleged "enemy combatants" in the post-September 11 war on terrorism. Though the ruling is limited to the treatment of non-citizens held as "enemy combatants," it sets an extremely important precedent for the rights of all non-citizens detained by U.S. authorities.
The ruling on non-citizen detainees was rendered the same day as the Supreme Court ruled on three separate but related cases involving post-September 11 "enemy combatants." The court was deeply aware of the historic significance of its rulings. And yet, it broadly—and decidedly—rejected the administration's argument that the executive branch has the exclusive authority to determine whether or not to indefinitely detain citizens and non-citizens. The ruling allows citizens and non-citizens alike to challenge their detention before U.S. courts. Through these rulings, the Supreme Court has issued one of its strongest statements ever against the executive claim of unreviewable authority in times of war.
In Rasul vs. Bush (No. 03-334)/Al Odah v. United States (No. 03-343) the court, by a 6-3 vote, held that the nearly 600 non-citizens being held at the Guantanamo Bay navel base may challenge their detention before a neutral decision-maker, presumably a federal judge.
In a case that yielded multiple opinions, six justices concluded in Hamdi vs. Rumsfeld (No. 03-6696) that a United States citizen being detained as an "enemy combatant" has a constitutional right to a hearing to contest the legal basis for his detention. Two justices would have gone further to hold that the government has no basis whatsoever to hold Hamdi and must either charge him criminally or release him. Thus, eight justices in all rejected the administration's sweeping claims of executive power. Hamdi, a U.S. citizen, was captured in Afghanistan and is being held in a navel brig in South Carolina. Justice Sandra Day O'Connor wrote the majority opinion that is full of passages destined for the pages of history. Responding to the need for appropriate constitutional balance in periods of conflict, she declared: "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… It would indeed be ironic if in the name of national defense, we would sanction the subversion of one of those liberties which make the defense of the nation worthwhile."
In Rumsfeld vs. Padilla (No. 03-1027), the court's decision was based on procedural grounds. The court ruled 5-4 that Padilla, a U.S. citizen arrested at O'Hare International Airport and now being held in a navel brig in South Carolina, must file a new lawsuit in a different court than the one where he had initially filed. The various opinions in Padilla and Hamdi made explicit, however, that five justices have concluded that the administration lacks the authority to hold Padilla.
In the Rasul case, the core question was whether non-citizens being held in custody at Guantanamo Bay have a right to file petitions for writs of habeas corpus—petitions through which federal judges are asked to examine the lawfulness of holding a person in custody. In affirming that right, Justice John Paul Stevens wrote for the majority and settled two basic issues raised in the case: first, that no distinction can be made between a citizen and a non-citizen held in custody in their right to petition for a writ of habeas corpus; and second, that Guantanamo Bay is within the jurisdiction of federal courts, entitling the non-citizens detained there to file petitions for writs of habeas corpus. It has been the administration's position that the federal judiciary's reach does not extend to Guantanamo Bay because it is outside the "sovereign territory" of the United States. In rejecting that argument, the court held that federal judicial review applies to Guantanamo Bay, since it is a territory in which the U.S. exercises plenary and exclusive jurisdiction, if not "ultimate sovereignty."
The court found support for its analysis in history. The writ has "roots, deep into the genius of our common law," said Justice Stevens. "The writ, which appeared in English law several centuries ago, has become an integral part of our common law heritage," he added. To emphasize the long history of the writ, he quoted Lord Mansfield from a 1759 British case to the effect that, even if a territory was "no part of the realm," there was "no doubt" as to the court's power to issue writs of habeas corpus if the territory was "under the subjugation of the crown" (King vs. Cowle, 2 Burr. 834, 854-855, 97 Eng. Rep. 587, 598-599 (K.B.)).
It remains unclear whether the court's ruling in the Rasul case applies to detention of non-citizens by U.S. federal authorities in other foreign locations outside of Guantanamo Bay. However, Justice Antonin Scalia seemed to infer that it does. In his strong dissent, he said that "the court boldly extends the jurisdiction of the scope of the habeas corpus statute to the four corners of the earth."
Observers of the Supreme Court have offered various explanations for the court's decisive rejection of the Bush administration's position. Some have suggested that the revelations of the military abuse in the Abu Ghraib prison in Iraq had a significant impact on the court. More to the point perhaps is the Supreme Court's strong interest in protecting its own institutional authority. In the years since World War II, the court has shown a consistent tendency to reject bold claims of unreviewable executive authority. In ruling on the three cases, the justices, once again, are signaling that it is the Supreme Court, and not the executive, that has the final word on the balance between liberty and security.
Despite the broad statements of the court, all three cases have left important questions regarding their implementation unanswered. Indeed, signs of confusion are beginning to emerge.
Soon after the Rasul case was decided, lawyers offered to travel to Guantanamo Bay and bring actions on behalf of the detainees. To stem a flow of litigation, the Defense Department announced new steps to allow detainees at Guantanamo Bay to challenge their status as "enemy combatants." Under the new procedure, the detainees would be provided with personal representatives, but not lawyers, to help them consider their legal options. They would be permitted to challenge their legal status before a newly created Combatant Status Review Tribunal, a panel of three military officers. Lawyers and others have expressed skepticism about whether the new measure would comply with the Supreme Court's rulings.
Thus, it seems, the last word on the rights of "enemy combatants" has yet to be written.