Detainee cases

Hi-
I thought this was an interesting view on the 3 detainee Supreme Court 
cases that came out this week.
-jessie

Forget what the media's talking heads have told you about the cases of 
Hamdi, Padilla,  and Rasul representing a victory for civil liberties 
and a curb on Presidential power. While it is significant that the 
court ruled that the prisoners have some access to U.S. courts, the 
President won far more than he lost. Taken together, the decisions are 
more important for what they did not do and their significance for the 
future cannot be underestimated.

Rumsfeld v. Padilla

To begin with, the Court dodged the most important case, that of Jose 
Padilla. Padilla, recently vilified by a highly-placed Department of 
Justice attorney, is the American citizen arrested on a material 
witness warrant in Chicago two years ago. The government's story then 
was that he was planning to detonate a dirty bomb. Attorney General 
John Ashcroft held a press conference and announced the incarceration 
of Padilla and told us what a dangerous man he was. Of course, if they 
had evidence that he was planning to detonate a dirty bomb, they would 
have charged him with a host of crimes, and tried him. But they never 
charged him with anything. What does that tell you? A couple of weeks 
ago, Ashcroft sent out one of his top deputies to change the story on 
Padilla. That story may have influenced the Court's decision, though we 
will never know this. The official denied that the press conference at 
which he announced that Padilla had "confessed" to plotting to blow up 
high-rise apartment buildings may have been held to punctuate the 
government's belief that Padilla was a very, very dangerous man. So if 
he is so dangerous, why is he not being charged? Or, you have to love 
this reason: Because the government denied him his rights and 
repeatedly interrogated him without an attorney (and, maybe even 
tortured him, for all we know) his confession is no good! Can't be used 
in court. So since we denied him his rights, we cannot try him, but we 
can hold him without charging him forever. Because we say he is 
dangerous.

And what did the Supreme Court have to say about that? In a 5-4 
decision, it said...nothing. It ruled that Padilla's court' appointed 
attorney, Donna Newman, filed the petition for writ of habeas corpus 
(challenging the detention of her client without charge, without access 
to her) in the wrong federal court. She sued Rumsfeld, on whose order 
Padilla was named an "enemy combatant" in the Southern District of New 
York, where he was brought and incarcerated and where she was 
appointed. But after she got into the case, and without notice to her, 
the government moved him to a brig in South Carolina. So the government 
argued that the warden of the brig is the party to be sued, not 
Rumsfeld. As if that warden does not answer to Rumsfeld, at least if 
she is holding an enemy combatant-so-called. So with Rehnquist writing 
for the majority, the court threw out his petition. Altogether. Padilla 
has to start all over again, suing the warden wherever he or she is. 
Ah, but keep in mind, that once his attorneys file a another petition, 
the government has only to move him again, ? and again, and again, ? to 
avoid answering for his detention.

So the most important of the three cases was not decided. In not 
deciding, the Court fully sanctioned the continued detention of 
Padilla, without a charge, without a lawyer (Newman is now out of the 
case, since the suit was dismissed), for years to come.

George Bush 1, Civil Liberties, 0.

Hamdi v. Rumsfeld

On first glance, which is all the nightly news gave you, the Hamdi case 
looks like a win for lovers of freedom. Even Hamdi's public defender, 
Frank Dunham, said that they "won big." I disagree. And amazingly to 
this writer, so did Scalia, who was joined in his dissent by Justice 
Stevens. The majority opinion was written by Justice O'Connor with a 
little something for everyone. Here is what we got: The Congress gave 
the President the authority to detain anyone involved with fighting 
with al Qaeda or the Taliban when it voted for war in Afghanistan. 
Hamdi was supposedly captured in Afghanistan. As long as the U.S. is 
fighting in Afghanistan (I guess that will be forever, don't you 
think?), Hamdi can be held without being charged with a crime. But, he 
gets a lawyer (a lawyer subject to special instructions by Ashcroft and 
Rumsfeld, a lawyer whose conversation with his client will be monitored 
and limited as Rumsfeld and Ashcroft see fit) and he can file a 
petition for writ of habeas corpus, challenging his detention. Ah, but 
the government gets the benefit of the doubt in such a hearing. It puts 
forth its conclusory affidavit, like the one cranky Judge Doumar in 
Richmond did not like one bit, and Hamdi gets to try and prove them 
wrong. Yes, the burden will be on Hamdi to prove the government's 
allegations against him to be wrong. Now that will be rather difficult, 
won't it, since Hamdi has been incarcerated for going on three years, 
has no contact with anyone in the outside world, and will have a hell 
of a time coming up with the witnesses to refute the conclusion of the 
government that he was indeed fighting with the Taliban or al Qaeda 
against the U.S. Let's see, even if he knew people to subpoena to 
support an alibi ? if he has one ? federal marshals don't serve 
subpoenas in Afghanistan.

Scalia and Stevens joined in the call to either charge him with a crime 
? Scalia suggested treason ? or have Congress suspend the writ of 
habeas corpus (Scalia contends that only Congress, not the President, 
can properly do this). But don't create some mechanism that allows the 
President to weasel out the result that the majority wanted ? that is, 
to give Hamdi a lawyer, let him file his papers, but give him the 
burden of proving his "innocence." An insurmountable burden of proof.

George Bush 2, Civil Liberties, 0.

Guantanamo Detainees

On this one, a 6-3 majority ruled that those poor bastards in 
Guantanamo, those men who have been there for going on three years and, 
we now presume, subject to all kinds of physical torture and mental and 
sexual abuse, can file a petition for writ of habeas corpus challenging 
their detention, but so what? The court was silent on what trial courts 
will do with the petitions. Presumably, let them file their papers then 
promptly toss them out. This was an expected outcome.

The Court was not going to accept the Administration's view of 
jurisdiction to think that the government that rules over Guantanamo 
Naval Station does not have jurisdiction over the prisoners that he 
holds there. It found that the detainor is the key to jurisdiction, not 
the detainee. So where the detaining party is, there is jurisdiction. 
That would be Rumsfeld.

I believe the Guantanamo prisoners will meet the same fate of most 
illegal immigrants who challenge their deportation with a writ of 
habeas corpus. They get a summary proceeding that sounds more than what 
it is because of the value attached to the term "habeas corpus." After 
a cursory reading of the petition, and a brief hearing to satisfy the 
bare requirements of the law, the gavel slams, and the immigrant is 
escorted to an airport and sent to whatever country can be found to 
receive him, after he serves his time for any crimes he can be charged 
with.

Though nothing was said of this in the opinion, I imagine that the 
prisoners will be under the same disability as Hamdi ? proving their 
"innocence," just like people facing deportation. But, you might ask, 
their innocence of what? They have been charged with no crime, neither 
has Hamdi. They, too, will have to prove that they were not fighting 
against the U.S. or preparing to do so. Again, where will they get 
their alibi witnesses and, if they have any, how can they be subpoenaed 
into court? You think the government is going to give visas to their 
witnesses? Or pay their expenses?

Fat chance.

George Bush 3, Civil Liberties, 0.

The Contrarian View

In these three cases, the Supreme Court did not want to totally 
abrogate its responsibility or the Constitution so it threw a vote or 
two in the direction of the Constitution.

But it left plenty of room for this despotic President, and all who 
follow him to incarcerate Americans at whim, concoct a story about 
"fighting" against American, and dare you, just dare you, to try your 
luck at proving your innocence.

There is no presumption of innocence ? not if you are Hamdi. There is 
no mercy ? not if the government moves you around so you never know 
whom to sue. There is a cruel hint at mercy for the Guantanamo Bay 
prisoners: File your papers, but tell your family to abandon hope. You 
aren't going anywhere anytime soon.

Game, set, match to George Bush.

Elaine Cassel practices law in Virginia and the District of Columbia, 
teachers law and psychology, and follows the Bush regime's dismantling 
of the Constitution at Civil Liberties Watch. Her book, The War on 
Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of 
Rights, will be published by Lawrence Hill this summer. She can be 
reached at: [email protected]
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