# Supreme Court issues decisions on Guantanamo and terrorism suspects **URL:** \ **Category:** Great Debates\ **Created:** [June 28, 2004, 3:20pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556 "2004-06-28T15:20:24Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 28, 2004, 3:20pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/1 "2004-06-28T15:20:24Z")
A little while ago, the Supreme Court announced its decisions on the various legal challenges to the detention of terrorism suspects in Guantanamo Bay and elsewhere. The opinions are not yet online, but news reports seem to say that the Court has made two basic rulings: (1) The President does have the power, as authorized by Congress, to detain terrorism suspects without charge or trial, indefinitely. (2) The detained suspects can nevertheless challenge their detentions in the U.S. courts. And they (or at least the American suspects–not entirely clear yet) are entitled to legal counsel in making those challenges. Seems like a classic baby-splitting exercise, but not too bad an outcome. The basic point is that the courts do in fact have the power to review what the executive branch does with respect to the detention of “enemy combatants,” although the executive still has a fair amount of discretion on the matter. More to come as the opinions are made available, but the floor is open for comment. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 28, 2004, 3:31pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/2 "2004-06-28T15:31:39Z")
[Hamdi v. Rumsfeld](http://a257.g.akamaitech.net/7/257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03-6696.pdf) (American citizen captured overseas and held in America) [Rasul v. Bush](http://a257.g.akamaitech.net/7/257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03-334.pdf) (foreign citizens captured overseas and held in Guantanamo) [Rumsfeld v. Padilla](http://a257.g.akamaitech.net/7/257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03-1027.pdf) (American arrested and held in the U.S.–no decision on the merits) ---
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [June 28, 2004, 3:31pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/3 "2004-06-28T15:31:50Z")
How can one challenge the detention if there’s no charge to challenge? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 28, 2004, 3:34pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/4 "2004-06-28T15:34:11Z")
Presumably, by a habeas corpus action in which the detainee claims not to have done anything justifying his detention. But that’s just a guess. I don’t know whether the opinions address that rather obvious question. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 28, 2004, 3:45pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/5 "2004-06-28T15:45:51Z")
Rehnquist is very firm on the proper use and misuse (in his opinion) of the Great Writ, and the clear distinction between that and other means of bringing a case to court. Presumably the detained, allegedly-enemy-supporter citizens have the untrammelled right to petition for a writ of habeas corpus, founding their claim in their Sixth Amendment rights. And the Presidential responsibility to “protect, preserve, and defend the Constitution” and to provide for the public safety and security justifies his detaining of them pending their trial and acquittal or conviction. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 28, 2004, 3:50pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/6 "2004-06-28T15:50:41Z")
You just touched on something very important, **Poly**. The decision in favor of Hamdi (U.S. citizen, held on U.S. soil) rests on his constitutional right to due process. The decision in favor of the Guantanamo detainees (foreign citizens, quasi-foreign soil) rests entirely on the _statutory_ right to habeas corpus. That means all Congress has to do is amend the statute and the Gitmo guys may be stuck there forever, no trials, no charges, no lawyers. ---
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [June 28, 2004, 3:59pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/7 "2004-06-28T15:59:16Z")
> [@Polycarp](#): > > And the Presidential responsibility to “protect, preserve, and defend the Constitution” and to provide for the public safety and security justifies his detaining of them pending their trial and acquittal or conviction. If point 1 in the OP is correct, then he has the right to hold them forever and NEVER press charges or have a trial, correct? I don’t think anybody has a problem with detaining them pending their trial, as long as there IS a trial within a reasonable amount of time. By reasonable time, I mean an amount comparable to when a person is charged with, say, murder. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 28, 2004, 4:29pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/8 "2004-06-28T16:29:04Z")
> [@Revtim](#): > > If point 1 in the OP is correct, then he has the right to hold them forever and NEVER press charges or have a trial, correct? I don’t think anybody has a problem with detaining them pending their trial, as long as there IS a trial within a reasonable amount of time. By reasonable time, I mean an amount comparable to when a person is charged with, say, murder. Draw the distinction between the Government (as accusing party) responsibility to bring them to trial and their abstract right to have their day in court. I could be wrong, but what I’m understanding SCOTUS to be saying is that the first can be suspended for the good of the national security, but that they are in fact entitled to the second – barring, as **minty** points out, the suspension of the Writ of Habeas Corpus as applying to them – legally by Congress, under precedent dating back to Lincoln by the President _extra vires_ but permissibly. ---
**Author:** ![SentientMeat](https://avatars.discourse-cdn.com/v4/letter/s/43a26b/32.png) [@SentientMeat](https://boards.straightdope.com/u/SentientMeat)\ **Post date:** [June 28, 2004, 4:46pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/9 "2004-06-28T16:46:22Z")
Does this mean that [US Army regulations](http://www.au.af.mil/au/awc/awcgate/law/ar190-8.pdf) (large PDF, see especially 1-5) are now redundant and can be violated with impunity? I think someone should tell the Army. ---
**Author:** ![El\_Kabong](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/el_kabong/32/496_2.png) [@El\_Kabong](https://boards.straightdope.com/u/El_Kabong)\ **Post date:** [June 28, 2004, 5:09pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/10 "2004-06-28T17:09:23Z")
Just my opinion, I’m not a lawyer, etc. Also, I’ve only skimmed _Hamdi_ and _Rasul_ so far, so I may be missing some nuances of the decisions. My understanding is that the court states that detainees held under “executive detention” are entitled to file for _Habeus Corpus_ proceedings in US district courts, and in the case of _Hamdi_ appears to specifically reject the notion that the government can hold a US citizen indefinitely without charge or trial, even as an “enemy combatant”, without presenting courts with the level of evidence in favor of said status that would be required for a civilian court proceeding. OTOH, the decisions appear to uphold the right of the government to carry out these detentions in the first place, under the notion of “Executive Detention”. Also, what they do NOT appear to address is the question of whether miltary tribunals for any of the detainees are warranted. What may be the effects? Well, most immediately it sounds like there will be a flurry of _Habeus_ filings on behalf of the Guantanamo detainees. I’m not well versed enough in law to know whether any of these will be successful (after all, the court only has to hear the petitions, not rule in favor of them). Nevertheless, the net effect of this action will be for the government to finally take no doubt begrudging steps to release detainees against whom they could not make a strong case under civilian rules of evidence. In the longer term? The potential for abuse under the whole notion of “Executive Detention” appears to remain high, and the sure knowledge that someone could be held incommunicado for a not insignificant period between their seizure and the hearing of a _Habeus_ petition means that the government will probably seek to exploit this useful loophole when it is convenient to do so. My personal opinion? Given the circumstances of their detention, and the many news stories concerning the questionable motives for detention of some civilians in Iraq, it seems fairly certain that some of the Guantanamo detainees are innocent of any crime related to terrorism. I therefore applaud any decision that might help speed their release. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 28, 2004, 6:31pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/11 "2004-06-28T18:31:18Z")
> [@minty green](#): > > Presumably, by a habeas corpus action in which the detainee claims not to have done anything justifying his detention. But that’s just a guess. I don’t know whether the opinions address that rather obvious question. If true, I find that very troubling. IANAL, but it sound to me like all that does is allow the detainee a chance to “prove he is innocent”. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 28, 2004, 7:31pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/12 "2004-06-28T19:31:20Z")
Correct. In a habeas corpus proceeding, the burden of proof is on the defendant. As a practical matter, of course, the government will still have to come forward with sufficient evidence to rebut the prisoner’s claim of innocence. But the burden is clearly on the detainee to prove he should not be imprisoned, and that will more than likely have predictable consequences as these cases get filed in the district courts. Honestly, I think the best thing that could be done here is for Congress to pass and the President to sign some sort of legislation providing a mechanism for judicial review of these detentions. Because it’s going to be a huge mess if the courts have to wing it in these unusual circumstances, and the opinions today offer precious little guidance in how these things should be resolved going forward. ---
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [June 28, 2004, 8:58pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/13 "2004-06-28T20:58:40Z")
But why do we need to treat this as a special circumstance to begin with? What’s wrong with the “old-fashioned” way of giving people a trial, and burden of proof remaining on the state to prove guilt? ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [June 28, 2004, 9:05pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/14 "2004-06-28T21:05:52Z")
> [@](#): > > But why do we need to treat this as a special circumstance to begin with? Because… We Are At War.[sup]TM[/sup] ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 28, 2004, 9:11pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/15 "2004-06-28T21:11:49Z")
But these guys _were_ (with the exception of Jose Padilla) captured in armed combat against the United States. Since when has the U.S. ever charged and tried such persons, unless they were accused of specific, identifiable crimes? The difficulty here is that these folks have been treated (entirely correctly, in my legal opinion) outside the Geneva Convention, which would otherwise provide for the terms of their detention and repatriation. Assuming that they are not subject to the G.C.–and one neat thing about today’s ruling is that they’ll probably be able to press their POW status in federal court now–they were in a legal black hole until today’s ruling. Like POWs, they don’t need to be charged with crimes to be held in detention, but unlike POWs, they are not repatriated upon cessation of hostilities. Today’s rulings provide a mechanism for judicial review to determine whether they should be freed, while maintaining the principle that captured combatants are not entitled to charges and trials. ---
**Author:** ![Mr.B](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Mr.B](https://boards.straightdope.com/u/Mr.B)\ **Post date:** [June 28, 2004, 10:09pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/16 "2004-06-28T22:09:03Z")
> [@minty green](#): > > Like POWs, they don’t need to be charged with crimes to be held in detention, but unlike POWs, they are not repatriated upon cessation of hostilities. I started reading the judgement on Hamdi and noted that they do not resolve this issue and instead hold that that hostilities are still ongoing in Afganistan (which seems a little questionable to me, but its arguable anyways). > [@Hamdi vs Rumsfied pg.16](#): > > If the record establishes that US troops are still engaged in active combat in Afganistan these detentions are part of the exercise of “necessary and appropriate force” and are therefore authorized One then presumes that if it could be shown major operations are over in Afganistan, Hamdi would either have to be charged with a crime or released. Is there some where else in the decisions where they decide that “unlawful combatents” can be held even after the conflict in Afgan. is over ---
**Author:** ![Spavined\_Gelding](https://avatars.discourse-cdn.com/v4/letter/s/958977/32.png) [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)\ **Post date:** [June 28, 2004, 10:25pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/17 "2004-06-28T22:25:18Z")
I’ve not had a chance to read the decisions yet (thanks, **Minty** for the Adobe links), but an item on the noon news said that Justice O’Connor’s opinion _implied_ that there was authority to hold these people (picked up or captured in Afghanistan) as long as there was a de facto state of was in Afghanistan, no as long as there was a War Against Terrorism ™. I’ll try to read all three decisions tonight. In the mean time, is the “enemy combatant” classification (which I think is a status heretofore unknown to the law) analogous to internment? Nationals of a hostile power can and are interned for the duration when found in the territory of an opposing or non-participating power, e.g. British and German aircrews in the Republic of Ireland during WWII, British subjects in France when Napoleon resumed power in 1815. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 28, 2004, 11:14pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/18 "2004-06-28T23:14:22Z")
> [@Mr. B](#): > > \One then presumes that if it could be shown major operations are over in Afganistan, Hamdi would either have to be charged with a crime or released. > > Is there some where else in the decisions where they decide that “unlawful combatents” can be held even after the conflict in Afgan. is over The plurality opinion in _Hamdi_ doesn’t really decide that enemy combatants must be released upon the cessation of hostilities, since that isn’t (according to the plurality, anyway) the case before it. The language that you’re referring to is dicta, i.e., naked pontificating about other possible cases instead of limiting yourself to the case in front of you. It is not binding precedent, though courts may take it as persuasive precedent. ---
**Author:** ![Mr.B](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Mr.B](https://boards.straightdope.com/u/Mr.B)\ **Post date:** [June 28, 2004, 11:38pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/19 "2004-06-28T23:38:55Z")
I’m not sure I understand the “dicta” thing. Hamdi (the plantiff?, err whats the terminology here) is claiming that he is being held illegally since there was no act of congress giving the military the right to hold him. The court responds that congress’s authorization for the administration to use “necessary and appropriate force” implied taking prisoners, and that prisoners could be held until the cessation of hostilities. She then notes that hostilities have not ceased, thus Hamdi’s arguement is moot. The decisions noting this doesn’t seem to be “naked pontificating”. If hostilities hadn’t ended, they’d need to examine a much different case, one where the military was holding a combatant despite the fact that the conflict he was involved in had ended, and thus debatably outside of congresses premission. ---
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [June 28, 2004, 11:57pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/20 "2004-06-28T23:57:42Z")
> [@minty green](#): > > But these guys _were_ (with the exception of Jose Padilla) captured in armed combat against the United States. Since when has the U.S. ever charged and tried such persons, unless they were accused of specific, identifiable crimes? > > The difficulty here is that these folks have been treated (entirely correctly, in my legal opinion) outside the Geneva Convention, which would otherwise provide for the terms of their detention and repatriation. Assuming that they are not subject to the G.C.–and one neat thing about today’s ruling is that they’ll probably be able to press their POW status in federal court now–they were in a legal black hole until today’s ruling. Like POWs, they don’t need to be charged with crimes to be held in detention, but unlike POWs, they are not repatriated upon cessation of hostilities. Today’s rulings provide a mechanism for judicial review to determine whether they should be freed, while maintaining the principle that captured combatants are not entitled to charges and trials. Thank you for answering my questions, **minty** , it’s greatly appreciated. I never understood this situation well enough. Why is it your legal opinion that these people are outside the Geneva Convention? What was different about the Afghanistan invasion that makes it different from other armed conflicts, like, say, Vietnam? (I assume the people we took prisoner in Vietnam were under the GC, but I suppose I may be wrong on that account). [Next page](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556.md?page=2)