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First, habeas corpus and the Guantanamo case. By a vote of 6-to-3, in an opinion written by Justice Stevens (with Rehnquist, Scalia, and Thomas dissenting), the justices hold that U.S. courts have jurisdiction to consider challenges by those detained at Guantanamo as to the legality of their detentions. To assess the magnitude of this holding, keep in mind that the entire Guantanamo detention operation was predicated on the assumption that there would be no access to U.S. courts by these non-citizens, on the theory that the Guantanamo Naval Base is technically on the sovereign soil of Cuba. As Justice Scalia said in his dissent, "[T]he Commander-in-Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs."

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I think Hamdi is even more significant than the Guantanamo cases. Sure, the court held that there was a category of "enemy combatants" that could be detained on executive order, but it is described—repeatedly—as a "narrow category," apparently limited those captured individuals who would otherwise be "returning to the field of battle and taking up arms once again." Well, of course! How could it be otherwise? Surely no president would even be required to return an enemy combatant into an active shooting war. More significant is the statement of what the category of "enemy combatant" may not include: "We agree [with Hamdi] that indefinite detention for the purpose of interrogation is not authorized." Of greatest significance, however, is the ruling on the amount of due process to determine whether a given individual is in fact an enemy combatant and is in fact being held for the narrow legitimate purpose for which an "enemy combatant" can be held. Because "the risk of erroneous deprivation of a citizen's liberty in the absence of sufficient process here is very real," a citizen seeking to challenge his classification must have notice "and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker."

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Although divided in its rationale, the court was decisive in rejecting the administration's core legal argument that the executive branch has the last word in imposing open-ended detention on citizens and noncitizens alike. The justices' language was occasionally passionate, reflecting their awareness of the historic nature of this confrontation between executive and judicial authority.

Eight justices, all but Justice Clarence Thomas, said the two-year-long detention of an American citizen, Yaser Esam Hamdi, had either been invalid from the beginning or had become so, for constitutional or statutory reasons. The controlling opinion, by Justice Sandra Day O'Connor, said that Mr. Hamdi's detention was permissible if designation as an enemy combatant proved to be correct, but that his inability so far to appear before a judge, challenge the government's evidence, and tell his side of the story had deprived him of his constitutional right to due process.

The opinion said that a citizen held as an enemy combatant was entitled to "notice of the factual basis for his classification" and a "fair opportunity to rebut the government's factual assertions before a neutral decision-maker." Writing for herself, Chief Justice William H. Rehnquist, and Justices Anthony M. Kennedy and Stephen G. Breyer, Justice O'Connor said, "These essential constitutional promises may not be eroded."

She added that "we necessarily reject the government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances." She said that the administration's position that the courts could not examine individual detainees' cases "serves only to condense power into a single branch of government."

Mr. Hamdi, ostensibly picked up on the battlefield in Afghanistan, has sought to contest his designation as an enemy combatant. The federal appeals court that heard his case ruled last year that a nine-paragraph statement filed by a Pentagon official, Michael Mobbs, was a sufficient basis for Mr. Hamdi's continued detention and that no further inquiry into his case was required.

In a second case Monday, concerning the hundreds of noncitizens confined at the United States naval base at Guantánamo Bay, the court ruled 6 to 3 that federal judges have jurisdiction to consider petitions for writs of habeas corpus from detainees who argue that they are being unlawfully held.

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http://www.nytimes.com/2004/06/29/politics/29DETA.html

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But how can those held in Cuba and elsewhere get a fair hearing if, to begin with, no one knows who they are?

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I can only guess, and as always IANAL, but I'd imagine the argument might go something like:

Federal courts have jurisdiction to consider petitions for writs of habeas corpus.

A person in custody can't file such a petition without representation.

But a person can't be represented if his identity is kept Sekrit.

So, to keep Sekrit someone's identity is to infringe on the jurisdiction of a federal court.

Whaddya think, josh? Could I make it as a jailhouse lawyer?

Or (more likely) would this get me laughed out of any court of competent (or even incompetent) jurisdiction?

[ 29 June 2004: Message edited by: 'lance ]