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Supreme Court Rules Enemy Combatants Can Challenge Detentions

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In a rebuke to the Bush Administration, the Supreme Court rules that the executive cannot hold enemy combatants without giving them the ability to challenge their decision in court. We speak with attorney Barbara Olshansky of the Center for Constitutional Rights that filed the suit.[includes transcript]

In a rebuke to the Bush Administration, the Supreme Court yesterday ruled that while the executive branch technically has the power to designate enemy combatants, prisoners have a right to challenge their detention in court.

In a rebuke to the Bush Administration, the Supreme Court yesterday ruled that while the executive branch technically has the power to designate enemy combatants, prisoners have a right to challenge their detention in court. In one opinion, Justice Sandra Day O’Conner wrote the “We have long since made clear that state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

In one of the major Supreme Court decisions, the justices ruled 8-1 that U.S.-born citizen and enemy combatant Yaser Hamdi could not be detained without giving him a way to challenge the government’s evidence. Justice Antonin Scalia wrote “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

In a second decision, the justices ruled 6-3 that federal courts do have jurisdiction over enemy combatants at Guantanamo Bay even though it”s not on U.S. soil.

The Supreme Court sidestepped a third major terrorism case, ruling that a lawsuit filed on behalf of U.S. citizen Jose Padilla improperly named Defense Secretary Donald 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. The decision angered some of the justices, who dissented.

  • Barbara Olshansky, attorney with the Center for Constitutional Rights. She is the author of Secret Trials and Executions: Military Tribunals and the Threat to Democracy.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We’re joined by Barbara Olshansky, an attorney with the Center for Constitutional Rights, author of Secret Trials and Executions: Military Tribunals and the Threat to Democracy. First talk about your case, the case brought by the Center for Constitutional Rights.

BARBARA OLSHANSKY: Our case was brought on behalf of family members of people that have been imprisoned in Guantanamo Bay now for more than two years. We brought this case as a habeas petition, really trying to get the principle established that these folks have a right to a day in court. Basically, some due process because the position of the Bush administration was that these folks could be held without charge, without trial, without any access to a court ever. We really wanted to make sure that there was some Judicial check on the Executive’s actions here, and that these folks got to make their claim in a court somewhere, anywhere in the world. The court held yesterday that the habeas statute, our statute that guarantees the right of a person to test the legality of their detention, that that right extends to everybody. The statute says people, and it means people. It extends to everywhere that the government acts so that the government, you know — you know government officials cannot ever be beyond the reach of the federal courts, really of a basic, core principle of our democrat institutions.

AMY GOODMAN: Now, I want to talk about the practical effects of all these rulings, but first let’s go through them. What about Yaser Hamdi?

BARBARA OLSHANSKY: Hamdi’s decision I think was also very much a separation of powers decision. The court made it clear, and you said it in the quote that you read from Justice Sandra Day O’Connor, who wrote that the plurality, that the position of the Bush administration, that the Executive was putting forward here, and it basically told this to the justices in the court, you cannot micromanage us. And what the administration was saying is, you really cannot review what we’re doing in the name of a war in any way. The court was really unwilling to accept that. It said that basically, you cannot do this. You cannot lock people away forever. You cannot deny them the right to ever challenge what you’re doing to them. And that, you know, really, historically, we have never permitted that before, and we’re not going to permit it now. That’s what Justice O’Conner was saying in Hamdi. The tenor of the opinion is, of course, he gets the right to counsel. Of course, he gets due process. That’s really clear in the decision that those irreducible minima of due process guarantees, you know, the right to notice of what you are being charged with, the right to test the legality of your detention, the right to present your own evidence, all of that, of course has to be provided. And all of that was what the government was arguing people do not ever get. And the court said no. It wasn’t so far as to say that even the standard of review that the government was saying, that some evidence, a very light review that the court could do, that this court was not going to accept that either. I think these are a significant blow to the movement of the administration towards an executive branch that’s un-tethered from the rest of our branches of government. It’s something that this court said emphatically, you cannot do, to the Bush administration.

AMY GOODMAN: Jose Padilla.

BARBARA OLSHANSKY: You know, the Padilla decision I think is an unfortunate decision. I think that Mr. Padilla really was dealt a raw blow by the decision because he was originally arrested under a material witness warrant, and that was a warrant that was issued out of the southern district, there was a grand jury convened, and he originally felt that he was going to be a witness. So, he was brought back before a judge in the southern district to answer in response to that warrant. When that warrant was dissolved, and he was declared an enemy combatant, he was taken into custody in that court. And so, it was of course, natural that, you know, his lawyers would file their petition in that court, and allege that the person that had declared him, Secretary Rumsfeld, was a person that should be sued. You know, because he was then transferred really, that’s the technicality that the court decided not to address the issue on, that he eventually got transferred to a naval brig in South Carolina. I think that’s unfortunate because now his case has to start over. He hasn’t lost the ability to challenge it. He has to bring it in another district. But it means for all intents and purposes that his detention is that much longer. His ability to challenge his detention still has to wait for that new proceeding to start, and run its way through the court. That’s really unfortunate. That technicality was used to evade adjudicating the merits of that case.

AMY GOODMAN: We’re talking to Barbara Olshansky with the Center for Constitutional Rights which brought one of the three major cases that the Supreme Court has ruled on and C.C.R. prevailed in that case. In the Jose Padilla case, he gets access to an attorney, meaningful access to an attorney?

BARBARA OLSHANSKY: Yes. I mean, all of those cases — even his case, they all stand for that proposition, that, you know, the writ of habeas corpus, that core thing that we brought over from England, it’s historic purpose always pertains. That means that you get to test the legality of your detention in court. In order to do that, in order for the writ to be meaningful, you have to have access to counsel to help you prepare your case and present your evidence and cross-examine witnesses. So, that key aspect of it means that everyone gets that. People in Guantanamo, Hamdi and Padilla, everyone gets the benefit of habeas corpus.

AMY GOODMAN: The Bush administration came up with this term, “enemy combatants,” to separate them from “prisoners of war” so that they wouldn’t have the same rights, is that correct?

BARBARA OLSHANSKY: Yeah. That is correct.

AMY GOODMAN: So, if the Supreme Court has now ruled that they do get access to a defense, to lawyers, does that mean they’re being treated the same as prisoners of war, that “enemy combatants” doesn’t have a distinct meaning?

BARBARA OLSHANSKY: I think it does, because we were very clear in all of our papers in these cases that the term “enemy combatants” is really not a term that’s used in international humanitarian law. A combatant is always someone that’s fighting against you in a war. You know, of course, if you are fighting against somebody, you are an enemy combatant. What the government tried to do is read into that term an inability to test your detention, an inability to ever challenge the way that you are being locked up. What this court said is, however you are going to use this term, we’re not going to read into it what you want to us read into it. So, really what the court is saying— it didn’t address the Geneva Conventions, which this is— you know, it’s this big elephant sort of looming in the background all the time, that the Bush administration has disavowed the Geneva Conventions in both its actions in Afghanistan and in Iraq. And what the court was saying is that, “we don’t have to reach the Geneva Conventions, because what we’re saying is that you could cannot constitutionally do this within the United States. We know that the Geneva Conventions also prohibit this, but that the administration can’t do what it wanted to do here.”

AMY GOODMAN: I’m looking at a piece in the Wall Street Journal, “High Court Backs Detainees’ Right to Challenge the U.S.” And it quotes Douglas Kmiec, a law professor at Pepperdine University in Malibu, California saying, “the biggest headache for the administration is that every one of the 600 detainees at Guantanamo will get a letter from some lawyer saying, you have your rights, let me represent you.” Now how practically does this work now?

BARBARA OLSHANSKY: You’ve hit the nail on the head. We are trying to figure out how this works. I think right now we have filed habeas petitions on behalf of about 19 people. There were the 12 Kuwaitis, four people we originally represented, we filed additional habeas petitions on behalf of another seven when we thought that the government was trying to release people in order to get the case out of the Supreme Court. During the course of the case, about 60 additional people came to us for representation on behalf of their family members. So, we now are clearly in a position of thinking about filing habeas petitions on behalf of those other people that we represent. And now we have to figure out, well, you know, how do we get notice to the people that are in Guantanamo that we don’t represent yet? I — our position is, and we will make a demand immediately this week to the United States government that they must notify the people in Guantanamo of this decision and permit them to get correspondence out to their families and ask for lawyers. And you’re right, then we’ll be in the position of having these habeas petitions that will need to be filed on behalf of all the people in Guantanamo who have the right to challenge their detention. And the good thing about it is, after the decision came down yesterday, law firms have been calling us night and day to say that they are willing to help. I think it’s — you know, that’s a great testament to like when our system works, it really works. I think now people see that there are many people there that are innocent, and I think that, you know, the things that have happened since the court took this case and the problems evident in the detentions by the United States in the world has made people very concerned both in terms of their moral concerns about how people are being treated, and their concerns for the position of the United States in the international community. So, now, I think we’ll have a lot of resources coming to us, at least I’m hoping so, to help us file all of these cases.

AMY GOODMAN: We’re talking to Barbara Olshansky. What effect do the rulings have on those secret detentions facilities that we have heard a good deal about, dozens of them that the U.S. is operating around the world? Where people like top level detainees, Khalid Sheikh Mohammad, are being held?

BARBARA OLSHANSKY: Well, we have a very big hurdle with regards to those facilities. So far we have really not been able to ascertain where all of those facilities are. We know there are facilities that we have not brought habeas petitions on behalf of people and we have not brought a suit. We have a suit that we brought on behalf of people released from Abu Ghraib. We are going to be working very diligently to find out where those other facilities are, because if the United States exercises jurisdiction and control over those facilities, we, of course, will try to make the argument that this decision means that people there have access to habeas corpus. We know that there have been a great many people arrested both in Iraq and around the world on uncorroborated tips. The United States has now said that more than 80% of the people in Iraq that were arrested and detained were innocent. They were civilians that were unarmed and never took up any position against the United States. You know, just going on that, we have a very great concern that there are people that were arrested and detained, and that are in other facilities in the same way. It’s incumbent upon to us try to find out where the facilities are, and insure that people get the benefits of the Geneva Conventions at the very least. You know, we want them for our soldiers, those benefits and protections, and we have to give them to everyone else.

AMY GOODMAN: Finally, Barbara Olshansky, were you surprised by the Supreme Court rulings, and what does it say about this court?

BARBARA OLSHANSKY: I was surprised. I mean, I was at the argument. We all were sitting there behind counsel table biting our nails, and I think even though the questioning really evinced the justices’ concern about how far the Executive was going, about the arrogance of the position that the court even doesn’t get to review what they’re doing, I still was very worried that, you know, the checks and balances were not going to work. When the decision came down yesterday and the clerk’s office called, I didn’t believe it, and I said I’m not going to believe it until I see it in writing, could you please send the decision. I am happy that — and greatly relieved that the — there were five justices, actually six that said that, you know, our system has to operate here in a way that supports democracy. Certainly in order for us to able to advocate democracy in other places, and I was surprised, because I refused to let myself anticipate a good ruling. So, you know, I’m happy today, although somewhat daunted by the prospect of what comes now, because this is just — this just means that the door is open to us. You know, and there’s a lot of work to do that goes forward now.

AMY GOODMAN: Barbara Olshansky, I want to thank you very much for being with us, from the Center for Constitutional Rights that brought one of the these three cases that the Supreme Court has ruled on. This is Democracy Now!.

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