ALSO VISIT

SUPREME COURT UPHOLDS DUE PROCESS RIGHTS FOR DETAINEES
28 June 2004

In a ruling today on the case of American citizen and detainee Yaser Esam Hamdi, the Supreme Court upheld due process rights for all detainees. The ruling reinforces the essential Constitutional role of the Judiciary branch in the adjudication of accusation of crimes, whether against domestic law or national security.

The ruling permits the Bush administration to hold American citizens as enemy combatants without charge, perhaps even indefinitely, for the duration of the presumed threat, but detainees must have access to attorneys and be allowed to challenge their detention. The designation of enemy combatant will be assessed by the court system, like any other charge of criminal activity, and the government will have to present evidence to support its suspicions.

The landmark ruling essentially declares the Guantánamo standard of prolonged detention without access to U.S. courts extraconstitutional, and may pave the way for lawsuits on behalf of innocents held without due process. The White House and the Pentagon have framed the ruling as a setback for their counter-terrorism policies, but Constitutional and human rights watchdog groups have applauded the ruling as an historic restoration of the American judicial process.

The administration will now have to contend with the normal legal process whereby suspects have the right to know the evidence against them, to confront criminal charges in court, and to provide exculpatory evidence. The ruling also has led some critics to note that their fears about executive overreaching have been affirmed, and that now each of the cases of extraconstitutional detention could be jeopardized, with interrogations thrown out and key evidence ruled inadmissable due to prosecutorial abuses.

The ruling was particularly surprising in that the presumed political affiliations of the court did not apply: Justice Antonin Scalia, clearly among the most conservative members of the Court, leveled severe criticism against the administration for its argument that the President could assume near absolute powers, if he designated a particular individual or entity a "national security threat", even without legal process or court approval.

The administration had also argued that Guantánamo Bay was beyond the reach of U.S. courts because it is on Cuban soil. The Court found this argument without merit, for the mere fact that the base is controlled entirely by the U.S. military, to the chagrin of the Communist government of the island nation. The Court has clearly stated that no agent of the U.S., under any circumstances, can claim to be above the law, or above the judicial process, and that any and all absues, wherever they occur, will be subject to U.S. courts of law.

The International Committee of the Red Cross, Amnesty International, Human Rights Watch, and other observers have estimated that a significant percentage of detainees at Guantánamo Bay are innocent, with no credible evidence against them that would implicate them in terrorist activities. In Iraq, Afghanistan and even Guantánamo, hundreds of individuals have already been released when it was discovered that the only evidence against them was testimony by rival factions or by elements of the Taliban or Hussein regimes.

The government will now have to put together coherent legal arguments against each and every detainee, to ensure that all U.S. detentions and prosecutions meet the Constitutional standard for justice. Some radical proponents of selective Constitutional application argue that the ruling aids terrorists, but the consensus among legal scholars is that the integrity of the U.S. legal system has been restored by the ruling.

For months, the British government has been wrangling with the U.S. over the fate of British citizens detained at Guantánamo Bay. The Blair government has repeatedly said the proposed tribunals do not meet minimum standards of democratic judicial proceedings, and that fundamental rights are being denied. Several British detainees were released first to British custody, then to their freedom, once it was determined there was no evidence implicating them in terrorist activity.

The administration had argued that the Constitutional provisions for "Commander-in-Chief" gave the President the right to overrule ordinary judicial law and procedure, and that when Congress permitted the use "all necessary and appropriate force" against agents of terrorism, due process rights were essentially suspended. The Court disagreed, redefining "appropriate" to mean that the Executive must at all times adhere to the law as written and subject its arguments to the courts. [For more: Guardian]