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Detainees stand near their cell blocks at Guantánamo.

Two Steps Forward

The Supreme Court delivers partial victory for rule of law

BY Doug Cassel

The Supreme Court’s decisions in three enemy combatant cases protect the rule of law from the worst excesses of the Bush administration’s anti-terrorist policies but leave open important questions that demand vigilance and struggle.

The administration maintains that the president’s constitutional mandate as a wartime commander-in-chief trumps all principles of law, articulated most nakedly in a now-disavowed 2002 Justice Department memorandum on detentions. Under this claim, Congress cannot prohibit torture because doing so would interfere with presidential discretion to win the war by whatever means deemed necessary.

In the litigation over enemy combatants, the administration similarly sought to oust the courts from overseeing individual rights. As Justice Sandra Day O’Connor wrote for the majority in the case of U.S. citizen Yaser Hamdi—confined for more than two years as an “enemy combatant” in South Carolina—the “most extreme rendition” of the administration’s arguments is that judicial deference to presidential power “ought to eliminate entirely any individual process, restricting the courts to investigating only whether legal authorization exists for the broader detention scheme.”

In other words, courts could review whether the president may detain enemy combatants but not whether a particular individual is an enemy combatant. Arguments like these, as columnist Molly Ivins warns, show us how fascism begins in a democracy.

Thankfully, the Supreme Court is more attuned than the president or his advisers to the essential need to safeguard liberty through checks and balances and due process of law By margins of 8-1 in cases of U.S. citizens and by 6-3 in the case of non-U.S. citizens imprisoned at the U.S. Naval Base in Guantánamo Bay, the Court ruled that there must be judicial review of whether detentions are lawful. The remaining, and troubling, questions involve how much judicial review there should be.

In the case of citizens, the Court ruled that due process requires that, at minimum, they be notified of the factual basis for the government’s claims. They then must have a “meaningful opportunity” to provide evidence to rebut those claims before a “neutral decisionmaker.” Although the Court was ambiguous, a “meaningful” review almost certainly means that U.S. citizen-prisoners must have the right to counsel.

Beyond that, however, it will be up to lower courts to decide how extensive a hearing prisoners will get and before whom. For example, must a “neutral” decisionmaker be a federal judge or—as the government may propose—a panel of military officers? In either case, prisoners may still face an effective reversal of the burden of proof. Will the government have to prove grounds for detention, or will the prisoner instead have to prove that he is—as many claim—an innocent civilian caught up in the fog of war?

For non-U.S. citizens at Guantánamo, the doubts are even greater. The Court only rejected the administration’s position (upheld by some lower courts) that no U.S. court can hear any claim by foreign citizens imprisoned outside formally “sovereign” U.S. territory. The Court ruled that Guantánamo is within its territorial jurisdiction and courts, so prisoners’ claims to challenge the lawfulness of their detentions must now be heard.

But how? Will the lower courts limit themselves to ordering the military itself to conduct hearings, by means of the review panels of military officers recently announced by the Pentagon? And as currently established, the panels provide no right to counsel. The Court’s opinion is ambiguous regarding the fate of prisoners held at secret detention centers besides Guantánamo that are not de facto U.S. territory. Will they get access to American courts?

If due process is not to be sacrificed on the altar of the “war on terror,” much work remains. The outcome of fundamental questions may turn on November’s elections. While new justices appointed by Bush—should he win reelection—are unlikely to overturn the majorities in last month’s rulings, they could decide that alleged enemy combatants have no right to counsel or that prisoners held by the United States in the Middle East have no right of access to our courts.

The Court’s recent rulings steer the country away from the perilous path toward a national security state and add to the fragile momentum (under way as a reaction to prisoner torture at Abu Ghraib) in favor of reimposing the rule of law on an effectively lawless administration.

Doug Cassel is professor of law and the director of the Center for Civil and Human Rights at Notre Dame Law School, and former director of the Center for International Human Rights at Northwestern University School of Law.

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