Constitution at the Crossroads: Landmark Post- 9/11 Cases Before Supreme Court Will Test America's Values of Fairness and Justice for All

Statement of ACLU Legal Director Steven R. Shapiro

FOR IMMEDIATE RELEASE

Video: View Shapiro's Press Briefing

WASHINGTON - The Supreme Court will hear arguments later this month in three cases seeking to apply the rule of law to the "war" on terrorism.

These cases, which address the indefinite detention of U.S. citizens designated as enemy combatants and of non-citizens at the Guantánamo Bay naval base in Cuba, raise fundamental questions about the role of the courts in preserving civil liberties during times of national crisis.

The cases also shine a spotlight on the role of international human rights law in U.S. courts and on the obligation of the United States to support human rights principles at home as well as abroad.

In the first case, which will be argued on April 20, the Court will review a ruling that the federal courts are not entitled to hear a claim that the detainees at Guantánamo are being held in violation of the Constitution and international law. The ACLU is part of a broad-based coalition that filed a friend-of-the-court brief calling on the Supreme Court to assure that the Guantánamo detainees have access to the courts to challenge the legality of their detention.

More than 600 people from 44 countries are being held indefinitely by the United States at Guantánamo with no charges filed against them and no access to lawyers or to their families. Most have been held for 18 months or longer. The government has refused to treat them as prisoners of war, and has refused to say when (if ever) they will be returned home. As a result, they have languished in a legal limbo that international law does not contemplate and that American constitutional law does not permit. Indeed, the government has claimed that it can continue to hold even those detainees who may eventually be tried and acquitted by military commissions.

The brief signed by the ACLU and others supports an appeal in two related lawsuits filed last year by relatives of 16 Guantánamo detainees who contend that their continued detention without any legal process violates the government's constitutional and treaty obligations. Endorsing that position, the brief argues that the claim of the detainees can and must be heard by the federal courts to ensure that the United States government fulfills its basic obligations under the Due Process Clause and the Geneva Conventions.

Rather than rule on the merits, the U.S. Court of Appeals for the District of Columbia held that the Guantánamo camps were part of the "sovereign territory of Cuba" and thus outside the jurisdiction of U.S. laws. The prisoners were effectively declared non-persons with no law to protect them and with no court to hear their pleas.

The ACLU and others have also raised the concern that America's treatment of the Guantánamo detainees may make it harder to protect the rights of American soldiers captured overseas. Current and former military officials as well as former U.S. POWs have all filed briefs before the Supreme Court urging that the people indefinitely detained at Guantánamo be given due process of law.

The government's position in the Guantánamo case represents a dramatic departure from prior practice. Individuals captured by the American military have long been entitled to a review process under the military's own regulations. Those regulations have been faithfully applied in prior conflicts, including the first Gulf War, when hundreds of individuals initially detained as enemy soldiers were later reclassified as refugees.

While the vast majority of Guantánamo detainees have received no process at all, the government has recently announced its intention to try two detainees before a military commission, and has designated four others for possible military trial. However, rather than delivering justice, the military commissions create a separate and unequal justice system for the Guantánamo detainees. A recent ACLU report, Conduct Unbecoming: Pitfalls in the President's Military Commissions, describes how this parallel system allows the government to investigate, jail, interrogate, try and punish the Guantánamo detainees without sufficient legal protections against wrongful conviction and potential execution.

Just last week, one of the military lawyers assigned to defend one of the accused Guantánamo detainees filed the first direct challenge to the military commission procedures, saying that the system violates the Constitution, federal law and the nation's obligations under the Geneva Conventions.

In the second set of arguments, which will be heard on April 28, the Justices will review the indefinite detention of U.S. citizens as "enemy combatants" in the consolidated cases of Hamdi v. Rumsfeld (03-6696) and Rumsfeld v. Padilla (03-1027).

Yaser Hamdi is an American citizen who was captured by the Northern Alliance while allegedly fighting with the Taliban in Afghanistan. Jose Padilla, an American citizen and onetime Chicago gang member also known as Abdullah al-Muhajir, has been accused of but not charged with plotting to explode a radioactive bomb in the United States. He was arrested in Chicago in May 2002. Both have been detained in military brigs for more than two years. Neither has been charged, or tried, or until very recently even allowed access to counsel. The sole basis for the detention is the President's unilateral declaration that they are "enemy combatants."

An appeals court in the Padilla case ruled that the detentions exceeded the authority of the executive branch and that U.S. citizens cannot be held at the sole discretion of the President without charges, trial or access to counsel. The appeals court in the Hamdi case found for the government.

To its credit, the government does not claim that the current struggle against terrorism fits within the definition of a traditional war. Yet, it selectively seeks to invoke the rules of traditional warfare to justify its actions.

In particular, the government argues that the detention of "enemy combatants" is always indefinite because one can never be sure when a war will be over. But, as the government itself has acknowledged, it is hard to imagine that the threat posed by global terrorism will ever be resolved by the kind of negotiated resolution that ended World War II. As a result, there are simply no rules constraining the government's claimed power. It alone gets to decide who is an enemy combatant. It alone gets to decide when, if ever, the "war" on terrorism is over. And, assuming the "war" is still ongoing, it alone gets to decide whether individuals detained without due process can safely be released. Under the government's view, Congress has no role to play in the process, and the role of the courts is marginal at best.

Inevitably, that leads to seemingly arbitrary results. The government has never explained why Zaccarias Moussaoui is being criminally prosecuted, and Jose Padilla is not. Similarly, the government has never explained why John Walker Lindh was criminally prosecuted and Yaser Hamdi was not, although both are alleged to have fought with the Taliban.

The ACLU's friend-of-the-court brief in the Padilla case highlights our nation's long constitutional tradition favoring civilian justice over military justice except in very limited circumstances. It also expressly distinguishes the World War II case involving eight German saboteurs, on which the government so heavily but erroneously relies.

The ACLU's friend-of-the-court brief in the Hamdi case points out that arbitrary executive detention has been seen as inconsistent with the rule of law since at least the Magna Carta. More specifically, we argue that: (1) the President lacks authority to designate American citizens as "enemy combatants" and subject them to indefinite military detention; (2) even if such authority exists, Hamdi is entitled to more due process than he has so far received to challenge the basis of that designation; (3) Hamdi must either be released or charged criminally if he is not an "enemy combatant;" and (4) Hamdi's treatment as an "enemy combatant" is in any event unlawful because the government has failed to comply with the Geneva Conventions.

Our system of checks and balances was designed to ensure that individual liberty does not rest on the good faith of government officials, and to place limits on the exercise of government authority. By contrast, the assertion of government power in the indefinite detentions of both U.S. citizens and non-citizens is virtually boundless.

For more than eight decades the ACLU has steadfastly adhered to the position that our nation's commitment to civil liberties cannot be forsaken in periods of national crisis. We have stood for this principle throughout our history, including during the dark days of World War II, and we stand for it today.

The links to all the ACLU legal briefs are online at /supremecourt