In 2001, during the war against Al Qaeda and the Taliban in Afghanistan, the Bush administration declared that those captured during conflict, regardless of their nationality, would be considered â€œenemy combatantsâ€ rather than prisoners of war. That decision put more than 600 captured foreign nationals, and some U.S. citizens, into a sort of legal limboâ€”with no protection under the Geneva Conventions or the U.S. Constitution, no formal charges, no right to a lawyer or due process, and no foreseeable end to their detention. However, on June 28, 2004, a series of decisions by the U.S. Supreme Court struck down the practice of indefinite incommunicado detention and cleared the way for detainees to challenge their enemy combatant status.
Hamdi v. Rumsfeld
Yaser Esam Hamdi was captured in Afghanistan in 2001 by a Northern Alliance force led by warlords and turned over to U.S. military authorities. The U.S. government alleged that Hamdi had been fighting with the Taliban, but Hamdi said he was there as a relief worker. He was held at GuantÃ¡namo Bay, Cuba, but when the U.S. military discovered that Hamdi was a Louisana-born U.S. citizen, they transferred him to a naval brig in Virginia and later to South Carolina. The Bush administration claimed that since Hamdi was caught fighting against the United States, he could be held as an enemy combatant. He spent his captivity in solitary confinement, incommunicado from his lawyers and the outside world, and charges were never brought against him.
In June 2002, Hamdiâ€™s father filed a petition for a writ of habeas corpus, contending that Hamdiâ€™s detention was not legally authorized. The case ultimately came before the Supreme Court, which ruled in Hamdiâ€™s favor, saying that a detained U.S. citizen seeking to challenge his or her status as an enemy combatant â€œmust receive notice of the factual basis of his classification, and a fair opportunity to rebut the governmentâ€™s factual assertions before a neutral decisionmaker.â€
Justice Sandra Day Oâ€™Connor, writing the plurality opinion, admonished the Bush administration, declaring that â€œa state of war is not a blank check for the president when it comes to the rights of the nationâ€™s citizens.â€ However, Oâ€™Connor wrote that Congressâ€™ authorization of the use of military force against Al Qaeda allows the executive branch to hold U.S. citizens deemed enemy combatants in military custodyâ€”and although the government cannot indefinitely hold a U.S. citizen without basic due process protection through judicial review, because of the ongoing military conflict, certain protections like placing the burden of proof on the government need not apply.
Rather than pursue judicial proceedings, prosecutors for the Bush administration negotiated a deal to release Hamdi on the conditions that he give up his American citizenship, â€œrenounce terrorismâ€ and remain in Saudi Arabia for at least five years, among other requirements. Hamdi returned to Saudi Arabia, the country where he was raised, on Oct. 11, 2004.
Rasul v. Bush, Al Odah v. United States
The Rasul and Al Odah rulings have implications for the nearly 600 detainees held at the U.S. military base in GuantÃ¡namo Bay, Cuba. These detainees, who were captured in Afghanistan, were declared enemy combatants, according to the Bush administration, in order to keep enemies in the â€œwar on terrorâ€ off the battlefield and as a means to interrogate prisoners. As is now known, the interrogation techniques used at GuantÃ¡namo Bay may have violated other domestic and international laws.
The two lawsuits were brought by the detaineesâ€™ families, who claimed the detainees were the victims of bounty hunters or otherwise mistakenly held. The main legal issue in these cases was the right to a writ of habeas corpus, which gives a person the right to challenge his or her detention by the U.S. government. The cases were appealed to the Supreme Court after lower courts ruled that as non-citizens held outside U.S. â€œsovereign territory,â€ the petitioners had no habeas corpus right. The Supreme Court, however, determined that GuantÃ¡namo Bay was effectively under U.S. sovereignty, thus allowing detainees the right to contest the lawfulness of their detentions in federal court.
However, the court was vague on the procedures that should be used. As a result, the Bush administration rushed to conduct Combatant Status Review tribunals to determine the legal status of the 594 remaining GuantÃ¡namo Bay detainees. The tribunal assigns each detainee a â€œpersonal representativeâ€â€”not a lawyer but a military officerâ€”for the review. The representative does not advocate for the detainee, but rather forwards to the review panel any information the detainee wishes to give, as well as any incriminating evidence the detainee may have told him.
Lawyers for the detainees pounced on the Combatant Status Review tribunals, arguing that they did not fulfill the courtâ€™s requirements. Lawyers have filed 54 writs of habeas corpus, which the June 28 Supreme Court ruling deemed admissible, forcing the Bush administration to defend the detentions in federal court. The Bush administration countered by filing a motion to dismiss the habeas petitions.
During a Dec. 1 hearing before the U.S. District Court for the District of Columbia, Judge Joyce Hens Green questioned Justice Department lawyers on the parameters of â€œenemy combatantâ€ status, asking if â€œa little old lady from Switzerlandâ€ who had donated money to a charity that ended up in the hands of terrorists without her knowledge could be considered an â€œenemy combatant.â€ The governmentâ€™s answer? Possibly. The federal courtâ€™s decision is forthcoming. As of Dec. 21,Â 2004, two GuantÃ¡namo detainees have been orderedÂ released after it was determined that they had been wrongly classified as "enemy combatants."
Rumsfeld v. Padilla
Many predicted this would be the governmentâ€™s hardest case to argue since it involved a U.S. citizen arrested within U.S. territory. Jose Padilla was arrested in May 2002 and accused of a plot to detonate a â€œdirty bombâ€ in the United States. He was initially arrested as a material witness but was subsequently declared an enemy combatant and was transferred to military custody in South Carolina, where he has been held incommunicado.
Human rights lawyers hoped that the court would rule on whether or not the president has the right to militarily detain U.S. citizens without charge. However, the court did not reach this question, concluding that Secretary of Defense Donald Rumsfeld was not the appropriate defendant in this case. The court cited the federal habeas statute, claiming â€œthe proper respondent is â€˜the personâ€™ having custody over the petitioner,â€ in this case, Commander Melanie A. Marr, warden of the naval military brig where Padilla is being held. As such, the District Court of New York, where the original petition was filed, had no jurisdiction.
In July 2004, Padilla filed a petition for a writ of habeas corpus in the District Court of South Carolina, which found that Padilla, a U.S. citizen, could not be held without charges at the discretion of the president. The Fourth Circuit of the U.S. Court of Appeals overturned that verdict on Sept. 9, 2005. Before the case could be heard again before the U.S. Supreme Court, the Bush administration significantly shifted its legal position and announced it would transfer Padilla from military custody to civilian custody. After three and a half years of being held as an enemy combatant, Padilla was indicted on charges of terrorism on Nov. 22, 2005. He pleaded not guilty before a federal judge in Miami on Jan. 12, 2006.Â
For more information
Read about the â€œenemy combatantâ€ court cases in depth from Human Rights First.Â
â€œHamdi et. al. v. Rumsfeld, Secretary of Defense, et. al.â€ Supreme Court of the United States. Argued April 28, 2004â€”Decided June 28, 2004.Â
â€œSupreme Court Guantanamo Decision.â€ Steven C. Welsh. International Security Law Project; June 30, 2004.Â Â
â€œSupreme Court: Detainees and Enemy Combatant Rights.â€ Transcript of Washington Post online discussion with Elisa Massimino, director of Human Rights First; June 28, 2004.Â
â€œNo Blank Check.â€ David Cole. The Nation; July 1, 2004.Â
â€œHamdi, Padilla and Rasul v. Rumsfeld and Bush. Who Really Won?â€ Elaine Cassel. Counterpunch; June 29, 2004.Â
â€œFate of Guantanamo Detainees isÂ Debated in Federal Court.â€ Neil A. Lewis. The New York Times; Dec. 2, 2004.
â€œThe Supreme Court: Excerpts From Rulings in Hamdi Case and 2 Others on Detaining â€˜Combatants.â€™â€Â The New York Times; June 29, 2004.
â€œThe Supreme Court: The President; In Classic Check and Balance, Court Shows Bush It Also Has Wartime Powers.â€Â Todd S. Purdum.Â The New York Times; June 29, 2004.
â€œAfghan Detainee Denies Fighting Americans.â€Â The New York Times; Aug. 5, 2004.
â€œCourt Gives Bush Right to Detain U.S. Combatant.â€ Neil A. Lewis. The New York Times; Sept. 10, 2005.
â€œIn Legal Shift, U.S. Charges Detainee in Terrorism Case.â€ Eric Lichtblau. The New York Times; Nov. 23, 2005.
â€œPadilla Pleads Not Guilty.â€ The Associated Press; Jan. 12, 2006.