Citizens Can Be Lawfully Detained: Oxymoron?

Hamdi vs. Rumsfeld:  Is The Detention of US Enemy Combatants Lawful?


Overview


In the immediate aftermath of 9/11, Yaser Hamdi an American citizen was captured by the Northern Alliance, then turned over to the US military in Afghanistan.  The US government declared him an enemy combatant and detained him without access to legal council or the opportunity to challenge his indefinite detention.  Hamdi’s fah-jah filed a writ of habeas corpus and argued that Hamdi was an aid worker who had been in the wrong place at the wrong time and was being illegally detained.


Lets do a quick break down of the terms and key issues before looking at the Supreme Court’s ruling on the matter.


Habeas Corpus


First of all, what’s habeas corpus?  Habeas corpus laws protect people from arbitrary detention.  The idea is that if you get arrested for something, you have the legal right to hear the charges against you, to contest the factual grounds for the charges against you, and that an impartial judge evaluate the charges against you in light of everything.  In other words, you cannot be detained without being presented particular charges and having those charges being grounds for detention–as determined by an impartial judge.   Habeas corpus laws protect citizens from being thrown in prison on a whim.   Under habeas corpus, if you are not charged with a specific crime for which an impartial judge determines there are reasonable grounds, you must be released.


What are the Issues?


So, what happened in the Hamdi case (short version) and what issues does it bring up?  Hamdi’s fah-jah’s initial petition to a lower court in Virginia was rejected on arguments from the Bush administration.  The Bush administration argued that since Hamdi was caught in arms in a combat zone against the US, he could be detained as an enemy combatant.   If he is an enemy combatant then his legal rights are no longer those of a US citizen, protected by US law, but of an enemy combatant which are governed by the Geneva Convention.  Under the Geneva Convention, enemy combatants only need to be released from detention after the cessation of hostilities.


Another argument from the lower court was that habeas corpus, in this case, would interfere with the broad powers of the executive achieved through the Authorization for Use Military Force Act (AUMF), enacted by Congress right after 9/11.  In short it says the President may “use all necessary and appropriate force against those nations organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” or “harbored such organizations or persons, in order to prevent any future acts of international terrorism against the US by such nations, organizations or persons.”  The US government alleged that Hamdi had had contact with the Taliban and at the time of capture surrendered his weapon (evidence of being a combatant).   In addition, interrogations of Hamdi further revealed that he met “the criteria for enemy combatant”.


So the main issue in this case is how to determine the legal rights of a citizen that is allegedly an enemy combatant.  Does the fact that they are an alleged enemy combatant put them under the domain of the Geneva Convention and strip them of their citizen rights to habeas corpus?  What is the legal way to treat an citizen who is an (alleged) enemy combatant in wartime?


Court’s Ruling (Short Version)


 “[…] due process demands that a citizen held in the US as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.”   If we look at how the judges arrived at their decision, we see some scary and interesting things.


Justice O’Connor
Scary quote:  “There is no bar to this Nation’s holding one of its own citizens as an enemy combatant”!!!


O’Connor questions the concept of “enemy combatant” and the evidentiary threshold that must be met to place someone in that category.  O’Connor (along with 3 other judges) agree that the AUMF authorized the President to detain Hamdi, and “there is no bar to this Nation’s holding one of its own citizens as an enemy combatant”.  Wut?  habeas corpus can be ignored?  How?  Doesn’t the rule of  US law require that citizens always have habeas corpus?  So, now the government can pick and choose when it applies?  Sounds a bit like arbitrary detention… As a side note, habeas corpus can only be suspended by an act of Congress, which it had not done…


The problem for these judges is not with detention of citizens without due process but with indefinite detention detention without due process.  The “War on Terror” is unconventional and could conceivably go on for generations in one capacity or another, rending it difficult to identify a clear criterion for when the “war” will officially be over.  Since the the law is that enemy combatants can be detained so long as there are ongoing hostilities, it might be problematic to detain for potentially very long times without due process–especially a citizen.


Another issue involves the constitutional rights of a citizen to dispute his status as an enemy combatant.  So, perhaps one might make the argument that an enemy combatant can be detained without due process, but why shouldn’t a citizen have the right to dispute their status?  In the post 9-11 histeria, how do we know that the US military properly and impartially assessed Hamdi’s status?


This was the argument put forward by O’Connor and 3 others, that “the circumstances surrounding Hamdi’s seizure cannot in any way be characterized as ‘undisputed’…”  In other words, taking the government at the word that Hamdi meets the criteria for being an enemy combatant is not consistent with due process.


The other government postion that the court opposed was that no further factual exploration was warranted or appropriate given the “extraordinary constitutional interests at stake”.  Here the Government is referring the broad warmaking powers of the President in the second article of the Constitution which “prevents the courts from interfering with this vital area of national security”.  In other words, there’s a tension between individual’s constitutional legal rights and the constitutional powers of the President.


In a country that usually favours individual rights over those of the government, this is one time they got it right.  Interesting that it was a Republican administration that was fighting so hard for government rights trumping those of individuals…don’t ya think?  He writes:


…as critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the US during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat…We reaffirm today the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against  the curtailment of liberty that such confinement entails.


If I go through all 9 judges this will take too long.  I’ll stop here and note that it’s interesting that 4 of the 8 judges who ruled against the Government did so not on the grounds that habeas corpus can’t be suspended except by an act of Congress, or that a citizen is an enemy combatant, rather habeas corpus rights in such cases are only extended so far as to dispute the factual basis for the plaintif’s classification as “enemy combatant”.   This points to an inconsistency in the law because the law is quite clear on the conditions under which habeas corpus can be suspended, and (like it or not) being an enemy combatant isn’t one of them…

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