28 June 2004
Supreme Court Rules on Detention of Enemy Combatants
Executive branch may not hold detainees indefinitely
By Michael Jay Friedman
Washington File Staff Writer
In a pair of decisions released June 28, the U.S. Supreme Court
clarified the circumstances under which the executive branch can
detain alleged enemy combatants without formal charges.
In the case of "Hamdi v. Rumsfeld," the Supreme Court ruled by
a 6-3 majority that Congress had validly authorized such detentions
after the September 11, 2001 attacks, but that Constitutional due
process requires that a U.S. citizen held under such circumstances
must be afforded a "meaningful opportunity to contest the factual
basis for that detention before a neutral decisionmaker."
Justice Sandra Day O'Connor, writing for the majority, outlined
the required "meaningful opportunity." Although an accused enemy-combatant
might not be entitled to the "full protections" afforded other
defendants, a citizen-detainee must be presented with the evidence
justifying his or her detention and afforded a fair opportunity,
including access to counsel, to rebut it. In such a situation,
the government might be allowed to rely upon hearsay evidence,
or to enjoy a rebuttable presumption in favor of its evidence,
so long as the detainee received a fair opportunity to respond.
Yaser Esam Hamdi, the Supreme Court held, had not received such
an opportunity while imprisoned at the Guantanamo Bay detention
facility without a hearing or access to counsel and where the sole
evidence offered against him was a "generic" government affidavit.
In the consolidated cases of "Rasul v. Bush" and "Odah v. Bush," the
Supreme Court addressed the claims of foreign nationals imprisoned
at Guantanamo under similar circumstances. It held, also by a 6-3
majority, that federal courts have jurisdiction over prisoners'
challenges to the legality of their detention. The Supreme Court
declined at this time to establish the legal standards that would
govern those challenges, instead remanding these challenges to
the lower federal courts for hearing. The opinion on these cases
was written by Justice John Paul Stevens.
Taken together, the decisions mark the unwillingness of the nation's
highest court to defer wholly to Executive branch claims of necessity.
Writing in "Hamdi," Justice O'Connor asserted, "Any process in
which the Executive's factual assertions go wholly unchallenged
or are simply presumed correct without any opportunity for the
alleged combatant to demonstrate otherwise fall constitutionally
Justices Antonin Scalia, William Rehnquist and Clarence Thomas