Holding terrorism suspects outside U.S. territory to keep them away from jurisdiction of the American legal system sets a risky precedent.
Published November 14, 2003
The war on terrorism has finally arrived at the doorstep of the U.S. Supreme Court.
This term, the court has accepted the appeals of two groups of prisoners from the Afghanistan conflict and has other cases before it that stem from the Bush administration's treatment of terrorist suspects. Up to this point, the federal appellate courts have largely allowed the administration to bend the rules of due process in the name of national security. Now the high court has the opportunity to set some limits.
Twelve Kuwaitis, two Britons and two Australians held at Guantanamo Bay, Cuba, are challenging their open-ended detention and the administration's refusal to provide them hearings before a tribunal. To date, they have had no way to challenge the legitimacy of their captivity. All have been detained for at least 18 months without charge.
The high court agreed to hear their appeals, but only on the narrow question of whether American courts have jurisdiction to decide the merits of the prisoners' claims. A federal appeals court had sided with the administration, ruling that prisoners held at Guantanamo have no access to the American legal system and are beyond the reach of any court. Former senior military officers and prisoners of war urged the Supreme Court to take the cases, because they believe this type of indefinite detention will set an example that could put our own military personnel at risk in future conflicts.
A case decided in 1950 gave the executive branch a way around judicial review of its actions. In Johnson vs. Eisentrager, the court said foreign nationals held in U.S. custody in connection with hostilities can be denied access to the courts simply by being imprisoned outside U.S. territory. This precedent is ripe for reversal. While it is unlikely that any court would intervene in most wartime decisions, giving the executive branch unreviewable authority to hold whomever it wants, under any conditions, grants a dangerous degree of power, particularly when the war on terrorism is likely to be indefinite and worldwide.
In another case awaiting a decision on certiorari, American-born Yaser Esam Hamdi is challenging the power of the executive branch to hold him in a military brig as an "enemy combatant" incommunicado, indefinitely and without charge. The 4th U.S. Circuit Court of Appeals agreed that Hamdi, who was apparently captured on the battlefield in Afghanistan, could be held without access to an attorney solely on the president's say-so.
And there is a Freedom of Information Act appeal before the high court asking it to determine whether immigrants can be secretly detained. In the aftermath of 9/11, hundreds of mostly Muslim immigrants were swept up under the vaguest of suspicions. The Justice Department refused to release the names of those it was holding. A federal appellate court upheld the nondisclosure.
For two years, since the attacks of 9/11, the administration has operated virtually without legal constraint, asserting that the rule of law can be disregarded when defending the nation against terrorism. But it is at those very moments of heightened national anxiety that mistakes are most often made and innocents are caught in the glare of suspicion. Standing up for the principles of due process - procedures that allow mistakes to be uncovered - is more vital at these times than any other.
The court has a duty to bring some balance to the civil liberties side of the freedom-versus-security equation. In a recent speech, President Bush, speaking on another issue, said: "(I)n the long run, stability cannot be purchased at the expense of liberty." How true, and we hope the court is listening.
