A mixed verdict on the terror war

Rulings offer partial wins for White House, civil rights activists
Monday, June 28, 2004 Posted: 1523 GMT (2323 HKT)

WASHINGTON (AP) -- The Supreme Court delivered a mixed verdict Monday on
the Bush administration's anti-terrorism policies, ruling that the U.S.
government has the power to hold American citizens and foreign nationals
without charges or trial, but that detainees can challenge their
treatment in U.S. courts.

The administration had sought a more clear-cut endorsement of its
policies than it got. The White House had claimed broad authority to
seize and hold potential terrorists or their protectors for as long as
the president saw fit - and without interference from judges or lawyers.

In both cases, the ruling was 6-3, although the lineup of justices was
different in the two decisions.

Ruling in the case of American-born detainee Yaser Esam Hamdi, Justice
Sandra Day O'Connor said the court has "made clear that a state of war
is not a blank check for the president when it comes to the rights of
the nation's citizens."

Congress did give the president authority to hold Hamdi, a four-justice
plurality of the court said, but that does not cancel out the basic
right to a day in court.

The court ruled similarly in the case of about 600 men born outside the
United States and held indefinitely at a U.S. Navy prison at Guantanamo
Bay, Cuba. The men can use American courts to contest their captivity
and treatment, the high court said.

The Supreme Court sidestepped a third major terrorism case, ruling that
a lawsuit filed on behalf of detainee Jose Padilla improperly named
Defense Secretary Donald H. Rumsfeld instead of the much lower-level
military officer in charge of the Navy brig in South Carolina where
Padilla has been held for more than two years.

Padilla must refile a lawsuit challenging his detention in a lower court.

Steven R. Shapiro, legal director of the ACLU, called the rulings "a
strong repudiation of the administration's argument that its actions in
the war on terrorism are beyond the rule of law and unreviewable by
American courts."

The administration had fought any suggestion that Hamdi or another

U.S.-born terrorism suspect could go to court, saying that such a legal
fight posed a threat to the president's power to wage war as he sees fit.

"We have no reason to doubt that courts, faced with these sensitive
matters, will pay proper heed both to the matters of national security
that might arise in an individual case and to the constitutional
limitations safeguarding essential liberties that remain vibrant even in
times of security concerns," Justice Sandra Day O'Connor wrote for the
court.

O'Connor said that Hamdi "unquestionably has the right to access to
counsel."

The court threw out a lower court ruling that supported the government's
position fully, and Hamdi's case now returns to a lower court.

The careful opinion seemed deferential to the White House, but did not
give the president everything he wanted.

The ruling is the largest test so far of executive power in the
post-September 11 assault on terrorism.

O'Connor said the court has "made clear that a state of war is not a
blank check for the president when it comes to the rights of the
nation's citizens."

She was joined by Chief Justice William H. Rehnquist and justices
Stephen Breyer and Anthony Kennedy in her view that Congress had
authorized detentions such as Hamdi's in what she called very limited
circumstances,

Congress voted shortly after the September 11 attacks to give the
president significant authority to pursue terrorists, but Hamdi's
lawyers said that authority did not extend to the indefinite detention
of an American citizen without charges or trial.

Two other justices, David H. Souter and Ruth Bader Ginsburg, would have
gone further and declared Hamdi's detention improper. Still, they joined
O'Connor and the others to say that Hamdi, and by extension others who
may be in his position, are entitled to their day in court.

Hamdi and Padilla are in military custody at a Navy brig in South
Carolina. They have been interrogated repeatedly without lawyers present.

The Bush administration contends that as "enemy combatants," the men are
not entitled to the usual rights of prisoners of war set out in the
Geneva Conventions. Enemy combatants are also outside the constitutional
protections for ordinary criminal suspects, the government has claimed.

The administration argued that the president alone has authority to
order their detention, and that courts have no business second-guessing
that decision.

The case has additional resonance because of recent revelations that
U.S. soldiers abused Iraqi prisoners and used harsh interrogation
methods at a prison outside Baghdad. For some critics of the
administration's security measures, the pictures of abuse at Abu Ghraib
prison illustrated what might go wrong if the military and White House
have unchecked authority over prisoners.

At oral arguments in the Padilla case in April, an administration lawyer
assured the court that Americans abide by international treaties against
torture, and that the president or the military would not allow even
mild torture as a means to get information.

The cases are: Hamdi v. Rumsfeld (03-6696) and Rumsfeld v. Padilla
(03-1027).

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