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The Enemy Combatant Cases

From dKosopedia

The U.S. Supreme Court decided three cases on June 28, 2004 which dealt with the right of the administration to detain people as "enemy combatants" in the war on terror and hold them indefinitely without judical review. These cases established that there were real limits on the President's power to detain people even with something akin to a declaration of war. These cases marked a limited but significant defeat for the President on his terrorism policy. These cases also cast doubt on the positions taken by President George W. Bush and his administration in the Torture Memos. Despite the administration's defeat in these cases, it has done everything in its power to defend its existing position, claiming that the cases place only trivial restrictions on the government's power to engage in its enemy combatant policy. See also Rendition. Many good links to original documents in these cases and related case can be found here. Credible formal allegation that Guantanamo Bay officers are atempting to undermine lawyer-client relationships in the cases with anti-Jewish smears are found here.

The cases decided were:


Rumsfeld v. Padilla

The Supreme Court Case

The case involved a U.S. citizen who grew up in the United States, converted to Islam, and traveled to Afghanistan where he allegedly attended a terrorist training camp. He was arrested by the FBI in the Chicago O'Hare airport in Illinois in June of 2002, while unarmed and held as a material witness in New York. He was then, on the eve of a hearing, after a lawyer had been appointed for him (but not met him), transferred to the Navy Brig in South Carolina for indefinite detention as an enemy combatant. Originally, Attorney General John Ashcroft said it was out of fear that he was making a "dirty bomb" (i.e. a mass of radioactive material that would spread as a toxin in an urban area, rather than explode in an atomic explosion). It later became clear that the "dirty bomb" plot was no more than an abandoned whimsy and that the only real plot may have been to set apartment buildings on fire -- something the administration can't prove against him because it comes from coerced confessions not admissible in criminal courts.

The Court decided 5-4 that Padilla's case should be dismissed because the brig Commander rather than Rumsfeld was the proper defendant, and South Carolina, rather than New York, was the proper state in which to bring suit.

The dissenting opinion joined by Justices Stevens, Ginsberg, Breyer and Souter, which largely focuses on why the Padilla case was an exception to the normal rules regarding who needed to be sued when in Padilla's case states at footnote eight in the Padilla case (citations omitted) that:

[T]he Non-Detention Act prohibits and the Authorization for Joint Military Force Resolution does not authorize the protracted incommunicado detention of American citizens arrested in the United States.

It is very likely that at least one of the Justices who agreed to dismiss the case on procedural grounds, Justice Scalia, would join the other four judges in finding that Padilla's detention was unlawful if the case were to return to the U.S. Supreme Court.

Justice Scalia states at the outset of his dissenting opinion in Hamdi (citations omitted) that:

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that the Constitution's Suspension Clause allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to justify detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.

It is hard to see how Scalia's statement could be squared with the continued detention of Jose Padilla.

It is also not clear that even Justices Rehnquist, O'Connor and Kennedy would support the Padilla detention which is the most extreme exercise of the government's assertion of "enemy combatant" detention power, even if they would support an "enemy combatant" detention in many other cases. The arrest of a man like Jose Padilla who was born in and grew up in the United States, in the Chicago O'Hare airport, by civilian authorities, while he was unarmed, is likely to be viewed differently by a judge like Justice O'Connor who is very prone to case by case analysis, than the arrest of the detainees in Rasul and Hamdi, many while armed, by military authorities, on or near the battlefield in Afghanistan. O'Connor wrote in the Hamdi case, for example, that:

A state of war is not a blank check for the president when it comes to the rights of the nation's citizens.

O'Connor made clear that the ruling in the Hamdi case concerned and was limited to (emphasis in the original):

A U.S. Citizen captured in a foreign combat zone.

O'Connor also noted elsewhere that Hamdi was carrying a weapon at the time he was detained. Thus, even the moderate plurality decision in Hamdi seems to provide clear signals regarding the opinion of the justices on the Padilla case which was argued the same day. It is entirely possible that if the Padilla case returned to the U.S. Supreme Court that Padilla would win an eight Justice majority in his favor. A similar analysis has been made by a libertarian Cato Institute analyst.

Further Litigation in Padilla's Case

Padilla's habeas brief in South Carolina is here. The docket sheet is here. Oral arguments on Padilla's motion for summary judgment were held on January 5, 2005, before Judge Henry Floyd, who was appointed to the U.S. District Court in 2003 (he was a relatively uncontroversial George W. Bush nominee) with the judge hearing the case announcing that he intended to rule on the motion in 30-45 days (i.e. sometime in the time period from February 4-19). The ruling in fact came on February 28, 2005 where it is discusesd in this dkos Diary which also contains a link to the court's opinion, in Padilla's favor on all counts, in the case. The release date for Padilla in the Court's February 28 opinion is April 14, 2005. A link for the trial court's order is found here.

The Justice Department has filed an appeal in the case and requested a stay of the court's order pending appeal, while acknowledging that its own conduct may preclude bringing a successful criminal case against him. The Government's stance remains indefensible. (Prior to the ruling commentators at SCOTUS Blog review the governments March 14, 2005 motion for a stay of the trial courts release order here and here and were not impressed with the government's argument.) But, the District Court granted a stay of its own order, pending the appeal in the 4th Circuit.

Padilla soughtextraordinary review directly to the U.S. Supreme Court. (Prior to the ruling at least one pundit thinks that extraordinary review is reasonably likely and might not be opposed strongly by the government. Padilla's Supreme Court Petition was filed on April 7, 2005; the Government's Opposition was filed on May 9, 2005. The U.S. Supreme Court denied this relief on June 13, 2005.

The government's brief in the 4th Circuit was due on May 2, 2005, according this this source. The government's opening appellate brief is here. Padilla's brief in the 4th Circuit appeal was due June 7 and is here. The Fourth Circuit has scheduled oral argument on the government's appeal of the trial court ruling in favor of Padilla on July 19. Discussion of the case in advance of oral argument is found here. The government's argument on appeal is summed up in a few words of one of its headings: "Padilla is a Classic Battlefield Combatant". How the government says that with a straight face, is anyone's guess. But, the Fourth Circuit agreed. The Fourth Circuit reversed the trial court and upheld the military's detention of Padilla in this ruling, by a 3-0 vote.

The core of the 4th Circuit's opinion was that Padilla was a battlefield combatant because on the facts that it assumed to be true, he had borne arms in Afghanistan and could return to battle there. The 4th Circuit held that the Congressional authorization for the use of military force following 9-11 provided the President with authority to act. Some analysis of this holding is found here.

Padilla was indicted in Miami, Florida on November 17, 2005 and has since been transferred to the criminal justice system and a jail in that system in Miami, Florida, from military custody, although this was not announced publicly until November 22, 2005. He is charged with being part of a U.S. organization that provided material support for foreign organizations that intended to carry out terrorist act abroad from 1996 onward, and faces life in prison if convicted. The government has taken the position that this renders moot his appeal to the U.S. Supreme Court from the 4th Circuit's ruling and ending this enemy combatant case. The charges differ from any of the previously stated reason that the United States government was keeping him in custody.

More resources on the Padilla case can be found from the Wiggin law firm and Findlaw and more Findlaw cases.

The Related Al-Marri Case.

Another detainee, Al-Marri's case is described in this docket before the same magistrate. Al-Marri was a graduate student in Illinois and is a citizen either of Qatar or Saudi Arabia or both. He was accused of credit card fraud in criminal proceedings, first in New York, and then after a venue change in Illinois, before George W. Bush declared him to be an enemy combatant and moved him to the Brig in South Carolina. Like Padilla, Al-Marri was arrested, alone, in the United States, where he was lawfully present, and was not in possession of any weapons.

Both Padilla and Al-Marri's cases are lead on the government side by Storm Thurmond, Jr., the U.S. Attorney for the South Carolina District and son of the former segregationist U.S. Senator. Magistrate Judge Richard S. Carr was initially presiding over both cases, although Ditrict Judge Henry Floyd has taken over the Padilla case now. Al-Marri's case is still in the early stages, with his counsel asking for an extension of time to engage in briefing on the substantive issues, in part because of delay in counsel getting access to Mr. Al-Marri and in part, no doubt, in the hope that a decision in the Padilla case would assist him in making his own argument.

Al-Marri's case has been fully briefed, and a motion for summary judgment was been filed, but the case is not likely to go to oral arguments before April or May.

Al-Marri's case faces a dim prospect of success short of the U.S. Supreme Court, to the extent that the 4th Circuit precedent of the Padilla case binds the court in Al-Marri, although the appellate ruling in Padilla's case was very fact specific. This case potentially would be one of the best vehicles with which to address that administration's enemy combatant policy for individuals detained within the United States remaining.

TECHNICAL NOTE: The District Court ended easy access to the Al-Marri and Padilla case materials on April 4, 2005, and now users must register with the federal court PACER system, so some links on this page may no longer work. The Court's announcement states:

"Effective April 4, 2005, Padilla v. Hanft (2:04CV2221) and al-Marri et al v. Hanft (2:04CV2257) have been removed from this site. Information about these cases can be obtained using your PACER login in CM/ECF."

Hamdi v. Rumsfeld

Yasar Hamdi was captured by the Northern Alliance in Afghanistan and turned over to U.S. troops who took him to Guantanamo Bay, Cuba. When his status as a U.S. citizen was discovered he was transferred to a Navy Brig and held there as an enemy combatant. His father brought suit seeking is release, claiming Hamdi was a relief worker entitled to relief. The administration claimed he was a Taliban fighter that it was entitled to hold without charge indefinitely.

The Court's decision was a complex 4-2-2-1 decision. Only Justice Thomas completely backed the administration's stance. Four judges held that alleged enemy combatants were entitled to judicial revivew of their status if no other neutral decision maker (such as a military tribunal) was made available and they were in the U.S. And, the plurality also took a view of what an enemy combatant was that was narrower than the administation position, looking at the length of hostilities in Afghanistan rather than the War on Terror, and treating "enemy combatants" more or less as prisoners of war, rather than individuals with no legal rights. Two more justices, Souter and Ginsberg, took a position similar to the plurality, but holding that the facts alleged about Hamdi did not show that he was an enemy combatant in their narrower definition of that status, and discounting any review other than in Article III courts. Two more justices, conservative Justice Scalia and liberal Justice Stevens, co-authored an opinion arguing that Hamdi could be held only if charged with a crime, and that enemy combatant status did not exist for U.S. citizens held in the United States.

Hamdi was released to his native Saudi Arabia without charges in October, 2004, in exchange for relinquishing his U.S. citizenship (he was born in the U.S., but lived there only very briefly as a child) and agreeing to a travel ban (which may not be legally enforceable).

Rasul v. Bush

This case decided on a 6-3 basis, held that Guantanamo Bay, Cuba was subject to the laws of the United States, that the proper place of suit was broad because there was no well defined location to bring suit for persons detained at that location, and that they were entitled to court review of their detention status on a similar basis to Hamdi. Three dissenting judges would have held that Guantanamo Bay was outside the jurisdiction of U.S. Courts.

A status report is found here. The trial judge has affirmed the detainee's right to counsel and has rebuffed government attempts to intrude upon attorney-client privilege. The extreme position the government has taken in the case on remand, despite the Supreme Court's ruling verges on unethical. The cases were set for hearings on government motions to dismiss (basically claiming that detainees have no meaningful rights) before two D.C. federal judges, one a Carter appointee who was previously a chief judge of the super-secret Foreign Intelligence Court (Green) and the other a conservative appointee of George W. Bush (Leon). The remarkable degree to which the government is ignoring the Supreme Court in these cases is set forth here.

The Bush Administration takes the position that the President has the power to detain indefinitely without judicial process even a little old lady from Switzerland who thinks she is sending money to an Afghan orphanage, should he choose to do so. True! The Bush Administration also takes the position that it may use information obtained with torture in its enemy combatant tribunals.

Judge Leon ruled in favor of the government (and contrary to the Hamdan ruling discussed below and Judge Green's subsequent ruling) in January, 2005 as discussed in this Daily Kos Diary. Judge Greeen ruled in favor of the detainees a week and a half later. This Daily Kos Diary discusses the shocking disconnect between the two judge's rulings.

Leon's ruling was immediately appeallable as it concluded the case. Green's ruling, under the ordinary rules of civil procedure would not be appealable until an evidentiary hearing was held in the case. However, she has granted the governments request to allow an appeal of her order in the middle of the case to the U.S. Court of Appeals for the District of Columbia Circuit. The government brief in that appeal is discussed at length here and appears to want to revisit issues the Court already decided the first time it dealt with the Enemy Combatant cases.

The latest update is discussed here.

Hamdan v. Rumsfield

In a Guantanamo prisoner's case flowing from Hamdi, called Hamdan the prisoner has won a partial victory in the trial court.

European legislators of every stripe, including the entire political leadership of the United Kingdom from every political party urged the United States Supreme Court to take prompt action on what is widely believed to be a gross breach of international law by George W. Bush. The U.S. Supreme Court denied expedited review.

The matter then proceeded in the United States Court of Appeals for the District of Columbia Circuit (which incidentally is a more favorable forum than the 4th Circuit which handles appeals in the Padilla and Al-Marri cases). A collection of the original documents in the Hamdan case can be found here. Another collection of documents from this and related cases can be found here. The case was pending in the United States Court of Appeals for the District of Columbia Circuit. Oral arguments were to be held on April 7, 2005 in the Court of Appeals, and the case is discussed on the eve of oral arguments here. Notably, two of the judges on the panel ruled against detainees in a prior case on grounds that were not upheld by the United States Supreme Court. Thus, a priori, it did not seem to be a favorable panel for Hamdan. The oral arguments are discussed here.

Hamdan lost in the D.C. Circuit Court of Appeals by a 3-0 vote of the judges, and will likely now appeal to the U.S. Supreme Court. The full opinion is found here. Among other things, the opinion holds that the Geneva Conventions may not be directly enforced by private individuals, that people who claim to be mere civilians aren't entitled to the same protections as prisoners of war, that the use of force declaration authorizes the formation of military tribunals, that the Geneva Conventions do not apply to al-Queda, and that the Geneva Conventions do not mandate that military tribunal defendants have the same legal protections of court marital defendants. SCOTUS blog examines here the July 15 ruling.

Hamdan's appeal to the U.S. Supreme Court from the July 15th ruling is discussed here. Hamdan has foregone en banc review to go directly to the U.S. Supreme Court. Links to the briefs to the U.S. Supreme Court on the issue of granting certiorari are found here. The U.S. Supreme Courts decision on whether or not to grant certiorari is on the fast track and John Roberts, who has been nominated to replace the late Justice Rehnquist has indicated that he will recuse himself from the case. Thus, it will be decided by eight Justices, rather than nine. After considering the matter, the U.S. Supreme Court granted certioriari. A 4-4 split would affirm the Court of Appeals ruling against Hamdan, so the working majority remains the same: five justice.

The 2005defense authorization bill, H.R. 2863, that contains the 'Detainee Treatment Act of 2005' as part of its Title X, 'Matters Relating to Detainees.'" contains provisions that some say could provide a basis for dismissing the Hamdan case and which, at least, makes further detainee suits far more difficult.

SCOTUS Blog had an earlier update on the status of Hamdan and some related cases. Yemeni detainees are fearful that they will be released from Guantanamo only to be tortured at home, and have obtained an injunction.

In at least one related Guantanamo case it appears that the military tribunals ignored the actual evidence in favor of arguments made by Defense Department lawyers unsupported by evidence, which were not made available to the detainee, to detain him as an enemy combatant. A BBC account of a hearing is found here. At least two military prosecutors have quit because they have been told that the military juries were hand picked to convict and the trials were rigged.

The Torture Suit

Six Algerians have brought suit alleging severe torture by the U.S. military in Bosnia and at Guantanmo, including actions causing paralysis.

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This page was last modified 14:54, 20 October 2007 by Nancy Marcus. Based on work by Chad Lupkes and Andrew Oh-Willeke and dKosopedia user(s) Allamakee Democrat, Corncam, Luckyboyzz, BartFraden, JhonnyX2003, Jbet777, Serginandr, Adriannecurry, Heel1983, Neverhood, JhonnyX, Patrioticliberal, Robindranatt, Jopan, Kynilyator, Qolyan, Bounty, Pizdorvanec, TheVerminator, The Maven and Bgod. Content is available under the terms of the GNU Free Documentation License.

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