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28 June 2004

Supreme Court Rules on Detention of Enemy Combatants

Executive branch may not hold detainees indefinitely

By Michael Jay Friedman
Washington File Staff Writer

In a pair of decisions released June 28, the U.S. Supreme Court clarified the circumstances under which the executive branch can detain alleged enemy combatants without formal charges.

In the case of "Hamdi v. Rumsfeld," the Supreme Court ruled by a 6-3 majority that Congress had validly authorized such detentions after the September 11, 2001 attacks, but that Constitutional due process requires that a U.S. citizen held under such circumstances must be afforded a "meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker."

Justice Sandra Day O'Connor, writing for the majority, outlined the required "meaningful opportunity." Although an accused enemy-combatant might not be entitled to the "full protections" afforded other defendants, a citizen-detainee must be presented with the evidence justifying his or her detention and afforded a fair opportunity, including access to counsel, to rebut it. In such a situation, the government might be allowed to rely upon hearsay evidence, or to enjoy a rebuttable presumption in favor of its evidence, so long as the detainee received a fair opportunity to respond.

Yaser Esam Hamdi, the Supreme Court held, had not received such an opportunity while imprisoned at the Guantanamo Bay detention facility without a hearing or access to counsel and where the sole evidence offered against him was a "generic" government affidavit.

In the consolidated cases of "Rasul v. Bush" and "Odah v. Bush," the Supreme Court addressed the claims of foreign nationals imprisoned at Guantanamo under similar circumstances. It held, also by a 6-3 majority, that federal courts have jurisdiction over prisoners' challenges to the legality of their detention. The Supreme Court declined at this time to establish the legal standards that would govern those challenges, instead remanding these challenges to the lower federal courts for hearing. The opinion on these cases was written by Justice John Paul Stevens.

Taken together, the decisions mark the unwillingness of the nation's highest court to defer wholly to Executive branch claims of necessity. Writing in "Hamdi," Justice O'Connor asserted, "Any process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise fall constitutionally short."

Justices Antonin Scalia, William Rehnquist and Clarence Thomas dissented.