SUPREME COURT WATCH

	June 28, 2004
	The Supreme Court dealt a setback to the Bush administration's war against terrorism today, ruling that U.S. citizens and foreigners seized as potential terrorists can challenge their treatment in U.S. courts. Ray Suarez discusses today's decisions with National Law Journal Washington bureau chief Marcia Coyle. Discussion

RAY SUAREZ: There were three cases before the court, and three separate rulings. Here to help us sort through the decisions is Marcia Coyle of the National Law Journal. Let's start, Marcia, with the attempt by detainees in Guantanamo Bay, in the prison camp there, to have their day in court. What were they asking for in their pleadings before the court and what was the decision? MARCIA COYLE: Well, as you know, there are about 600 detainees at Guantanamo Bay as a result of our hostilities in Afghanistan. This case involved two Australian nationals and 12 Kuwaiti nationals who basically were asking whether the federal courthouses were open to their petitions. It's known as a petition for a writ of habeas corpus that would allow the federal courts to review the legality of their detentions. Those detentions have gone on for more than two years now. RAY SUAREZ: And the U.S. Government had maintained that, in fact, there was no court open to these men at the moment. MARCIA COYLE: That's correct. The government had made basically two arguments to the court. One, that a World War II era Supreme Court decision applied here, and in that decision the Supreme Court had said there was no federal jurisdiction to review the convictions or the challenges to the convictions of six German citizens who had been charged and convicted of war crimes during World War II. They were convicted by a military tribunal in China and then later imprisoned in Germany. The government had also argued that our federal court jurisdiction under the habeas corpus statute did not extend beyond the territory of the United States. Guantanamo Bay, the Bush administration said, belongs to Cuba. Cuba is sovereign, hence, federal jurisdiction does not apply to these detainees. RAY SUAREZ: And in today's decision, what did court announce? MARCIA COYLE: Well, the court issued a 6-3 ruling, and it rejected the government's arguments. Justice John Paul Stevens wrote for the majority. First he looked at that World War II era decision. He said basically this is not that case. These detainees are not citizens of nations at war with the United States. These detainees have not been convicted, much less charged, with anything. He also said that Guantanamo Bay, even though it's leased by the United States from Cuba, is really U.S. territory because the United States exercises complete control over the Guantanamo Bay naval station and can continue to do so forever if it chooses. Justice Stevens said that the government had conceded in oral arguments that if an American citizen were held in Guantanamo Bay, that American citizen could file a petition for habeas corpus in our federal courts. The habeas statute makes no... doesn't distinguish between aliens and citizens. So he found and five other justices joined him that these detainees could go forward with a petition in our federal courts. RAY SUAREZ: So they will be heard one way or another about their continued incarceration? MARCIA COYLE: Yes, they can petition and they can be heard. RAY SUAREZ: What does that mean to the hundreds of other detainees there? MARCIA COYLE: Well, we'll have to wait and see how this plays out. I mean, technically the 600 could file petitions for habeas corpus. It may be that a class action, which is a grouping of their claims, could be brought in our federal courts. Justice Scalia wrote in dissent in this case, and he felt that the court was overturning 50 years of settled law that the military had relied upon here, and that now the military is going to be drawn into the domestic court situation. Our courts are going to be interfering with military law and he thought there would be a great deal of damage done by the decision. I think we just have to wait and see what happens as the decisions are filed. RAY SUAREZ: Yaser Hamdi also went to the federal courts for relief, asking that he be given a hearing as well. MARCIA COYLE: Yes. Hamdi was designated an enemy combatant and what distinguished him from the Guantanamo Bay case is that he's an American citizen. He has dual citizenship - the United States and Saudi citizenship. He was picked up on the battlefield in Afghanistan by the Northern Alliance, our allies. He was allegedly part of a Taliban unit, transferred to U.S. military custody, sent to Guantanamo Bay; after the military discovery he was an American citizen, he was sent to the United States and he's been in a Navy brig in Charleston, South Carolina, without counsel until recently, and he's been detained for more than two yeas. The question before the court in his case was almost two fold: first he challenged whether the president had authority to detain an American citizen as an enemy combatant, and secondly, once he's in federal court challenging that, how much process is he due? The court today had a rather splintered ruling. There were many separate decisions, but the bottom line is that the court by eight justices rejected the government's position on how much process he's due. Four justices ruled that his detention is authorized by a resolution that congress passed shortly after 9/11. It's called the authorization of military force. And those four justices were led by Justice Sandra Day O'Connor. She said that resolution did cover citizen enemy combatants. She limited the enemy combatant though to the person who is engaged in armed conflict in Afghanistan. RAY SUAREZ: Now they let stand the idea that such a thing exists as an enemy combatant and the president has the power to say so. MARCIA COYLE: Yes. RAY SUAREZ: Very briefly get to Jose Padilla's case which I guess they decided not to decide. MARCIA COYLE: They did. It was a jurisdictional question. The court five/four said that he had filed his petition in the wrong jurisdiction. He can now turn around and file his petition in the district of South Carolina where he's held in the same navy brig as Hamdi. It's a very similar case. The question for him will be what kind of process is he due once he's in federal court? I think he emerges stronger as a result of the Hamdi decision. The Supreme Court did lay out that these citizen enemy combatants have a right to bring forward evidence to challenge the government's claim that they're enemy combatants and to have it done before a neutral decision-maker. RAY SUAREZ: This was the case that got the most attention and was thought to be the biggest of the three. Yet the justices decided not to proceed on a technical question, which district he filed in. Is that unusual? MARCIA COYLE: No, they take these things jurisdictions standings very seriously. However, it was a five/four decision. Justice Stevens wrote in dissent that in effect the court was elevating formalism above substance. That there had been exceptions to this filing rule. But here there were very serious interests at stake. Justice Stevens said the essence of liberty is here. You have an American citizen held in detention. He was actually arrested on American soil. That's why many thought the government would have a more difficult time with this case than with Hamdi who was picked up on the battlefield. RAY SUAREZ: Very quickly, the Padilla case starts from the beginning again. MARCIA COYLE: It does. RAY SUAREZ: Will that be expedited and be able to quickly move or will it have to percolate through the system like it did originally? MARCIA COYLE: It will have to go through the regular process of filing the petition, but as a result of Hamdi, his claim should be heard now more quickly because the Supreme Court has basically resolved the fact that Padilla can come forward with evidence and challenge the government's designation of him as an enemy combatant. RAY SUAREZ: Marcia Coyle, thanks a lot. MARCIA COYLE: You're welcome.