Detainee's Case Goes to Supreme Court (Findlaw/AP, October 2, 2003): The Supreme Court was asked Wednesday to consider if the government has unconstitutionally imprisoned an American-born man captured during the fighting in Afghanistan. Yaser Esam Hamdi is being held in a naval brig in South Carolina, without access to attorneys and without charges being filed against him. "The man's been locked up for two years," said Frank W. Dunham Jr., a federal public defender who filed the appeal on his behalf. "He wants an opportunity to be heard in court. It goes right to the heart of our liberties." The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled in January that the government has wide latitude to detain people caught fighting against the United States on foreign soil during wartime, without giving them traditional legal rights. Dunham told justices in a filing that the appeals court not only "embraced an unchecked executive power to indefinitely detain American citizens suspected of being affiliated with enemies, but it also abandoned procedural safeguards designed to promote truth and fairness." The Bush administration has maintained the detention is constitutional and important for national security. The administration has about a month to file a response in Hamdi's case. So far, the Supreme Court has refused to hear any cases stemming from the terrorist attacks and the government's war on terror.
And I don't expect that streak to be broken by this case. Even if the court didn't somewhat favor the administration on this specific case -- and somehow, I suspect that they do -- the fact that Hamdi was captured in Afghanistan may persuade the Court to keep away from the case. The Court is likely to give wide lattitude to the administration in dealing with people captured on foreign soil. (That said, I should think that the four-member liberal minority on the Court finds this administration's handling of detainees and their rights very distasteful indeed. But that may not persuade them to touch this case.)
That said ... one does wonder if the administration may in fact have erred by imprisoning Hamdi in the continental US, rather than at Guantanamo. As an American citizen on American soil, while the government may be able to treat him as a foreign combattant in other ways, they may at the least be forced to allow him access to a lawyer and civilian courts. If they had kept him at Guantanamo, the Supreme Court might just have shrugged and said, "Hey, foreign soil, what'cha gonna do?", which is the federal court system's response to anything to do with Guantanamo. His actual location may force the situation in some way or another.
The case that is more likely to be taken up, whenever the appeal makes its way to that level, will be Jose Padilla's. (Remember him?) He was a US citizen, taken on US soil, and the activities with which he was charged were arguably legal at the time. (It was not, and technically is not, illegal to argue for and discuss the forceful removal of the US government. It is illegal to make the attempt. As I recall, at the time, the CIA opinion was that Padilla and his friends had engaged in nothing more than "loose talk".)
The appeal by the 660 Guantanamo detainees is even less likely to be taken up. They're not American nationals, and they're not on American soil per se. The Court will almost certainly hold that it lacks jurisdiction to decide their cases.
It will be interesting to see if, with all these cases, the Court decides to set guidelines for the administration's treatment of "enemy combattants", since the administration's general plan seems to be, "Stick 'em in a prison somewhere and hope the world forgets about 'em." It may well be that, while they would normally decline Hamdi's case because of how it originated, that they might feel that they have to turn to the government and say, "You know what? A national emergency does not give you unlimited license to mistreat American citizens, no matter how dire. You may not hold someone indefinitely without trial. You may not hold someone indefinitely without allowing them access to lawyers of their choosing, or court-appointed counsel. You may not suspend the right of habeas corpus for selected persons at your whim."
One can but hope, in any event.
Posted by iain at October 02, 2003 06:33 PMComments
