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WASHINGTON — In a historic pair of decisions affirming due process rights even in a time of war, the Supreme Court largely repudiated the Bush administration’s view that enemy combatants and detainees can be held indefinitely without access to federal court habeas corpusreview. In both cases — Hamdi v. Rumsfeld , No. 03-6696, involving U.S. citizen Yaser Esam Hamdi, captured in Afghanistan and held in the United States, and Rasul v. Bush , 03-334, brought by Australians and Kuwaitis detained at the U.S. naval base in Guantanamo Bay, Cuba — different 6-3 majorities made it clear the government had gone too far in seeking unchecked power to detain and interrogate individuals in the war on terror. Detainees in both settings are entitled to review by neutral adjudicators, the court said in a major departure from its usual wartime deference to the wishes of the executive. The court also reminded the administration that the court, and no one else, is the final arbiter of the boundaries between the branches of government. “We have long since made clear that a state of war is not a blank check when it comes to the rights of the nation’s citizens,” declared Justice Sandra Day O’Connor for the court in Hamdi . “The threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the government’s case and to be heard by an independent adjudicator.” She also said that Hamdi “unquestionably” has the right of access to a lawyer. In a third much-awaited ruling on the war on terror, Rumsfeld v. Padilla , 03-1027, a 5-4 majority sidestepped the issue of whether the government has the authority to indefinitely hold Jose Padilla, a U.S. citizen seized, unlike Hamdi, on American soil two years ago as a material witness with al Qaeda connections. The court found that Padilla’s habeas corpus petition had been filed in the wrong court — the Southern District of New York instead of in South Carolina, where Padilla is being held at a Navy brig. If the case is refiled in the proper court, Padilla would presumably receive due process similar to what the court said was required for Hamdi. Solicitor General Theodore Olson and other government lawyers sat glumly as the decisions were announced on the court’s next-to-last day of the term. Justice Antonin Scalia added to the drama by reading from a dissent in Hamdi that went even further in rejecting the administration’s position. Joined by Justice John Paul Stevens — a rare pairing –Scalia said the Constitution offered only one way to achieve the administration’s goal: suspension of habeas corpus by a vote of Congress, a step that has not been taken on the mainland United States since Reconstruction. “If civil rights are to be curtailed during wartime, it must be done openly and democratically as the Constitution requires,” Scalia declared. Justice Clarence Thomas was the only justice who offered general support for the administration’s position in Hamdi , leading some commentators Monday to view it as an 8-1 defeat for the administration. Justice David Souter also read from a concurrence in Hamdi , which, joined by Justice Ruth Bader Ginsburg, asserted that the government lacks authority to detain Hamdi. But they joined in O’Connor’s judgment that Hamdi now deserves habeas protection. The administration’s only clear victory Monday appeared to be that five justices in the Hamdi case agreed that his detention as an enemy combatant was authorized by the resolution passed by Congress a week after the Sept. 11, 2001, terrorist attacks. O’Connor made that concession to the government’s position in her plurality ruling joined by Chief Justice William Rehnquist and Justices Anthony Kennedy and Stephen Breyer. Justice Thomas dissented on other grounds, but appeared to agree the detention was authorized. O’Connor’s support for the detention appears to be limited to the period of “active combat,” not an indefinite period. Some administration supporters, while disappointed, sought to emphasize that victory in reacting to the rulings. “It doesn’t seem to be much of a defeat for the administration,” said Paul Kamenar of the Washington Legal Foundation. “While the court affirmed the president’s authority to declare terrorism suspects as enemy combatants, the decisions are troubling and open the door to the alarming prospect of subjecting military decisions involving the war on terrorism to the federal courts,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, which filed briefs in the cases for the administration. Sen. John Cornyn, R-Texas, who also supported the administration before the court, criticized Monday’s rulings. “I am a little concerned about the new constraints that the Supreme Court has placed on the president as commander in chief. I hope that they don’t represent handcuffs,” Cornyn said. But civil liberties groups rejoiced at what American Civil Liberties Union Legal Director Steve Shapiro called “a very stinging and watershed defeat” for the administration’s “unprecedented claims.” “These decisions make clear, by justices that are not traditionally liberal allies, that the courts have a very important role to play in checking the executive’s power, even in wartime,” said Deborah Pearlstein of Human Rights First. American Bar Association President Dennis Archer said the high court had reaffirmed a bedrock democratic principle: “that U.S. citizens deprived of their liberty are entitled to contest the basis of their detentions in a court of law, and fundamental fairness requires access to counsel to assist them in that challenge.” Former appeals court Judge John Gibbons, who argued the Guantanamo case on behalf of the detainees, said, “This is a good day for the rule of law.” Gibbons said he and the Center for Constitutional Rights, which also represented the Guantanamo detainees, would seek to work with the Justice Department to facilitate “fair and prompt hearings for our clients.” The exact contours of the due process that the court wants for enemy combatants or Guantanamo detainees are unclear. Justice O’Connor said a citizen-detainee such as Hamdi is entitled to “receive notice of the factual basis for his classification, and a fair opportunity to rebut the government’s factual assertions before a neutral decisionmaker.” But she also said any proceedings “may be tailored” so as not to burden the executive branch at a time of war. She said, for example, that hearsay evidence could be admitted and that a presumption in favor of the government could be allowed. Such procedures, she said, would guarantee that “the errant tourist, embedded journalist, or local aid worker” would be able to rebut government arguments in favor of detention. “We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the government forecasts,” O’Connor added. In the Rasul ruling, Justice Stevens, writing for the majority, specifically stated that he was offering no opinion on what kind of proceedings would be appropriate for the Guantanamo detainees. “What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing,” said Stevens, adding that his answer was “in the affirmative.” Stevens also rejected the administration’s view that because Guantanamo was on Cuban soil, U.S. courts lacked jurisdiction for habeas review of the detainees’ imprisonment. Stevens described Guantanamo as “territory over which the United States exercises exclusive jurisdiction and control.” In dissent, Scalia said the detainees “are not located within the territorial jurisdiction of any federal district court. One would think that is the end of the case.” He also called the ruling a “breathtaking” expansion of rights for aliens that “boldly expands the scope of the habeas statute to the four corners of the earth.” Scalia was joined by Rehnquist and Thomas in dissent. Tony Mauro is Supreme Court correspondent for American Lawyer Media andThe Recorder’s Washington, D.C., affiliateLegal Times. His e-mail address is [email protected].

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