ZGram - 6/28/2004 - "A most US important Supreme Court Ruling"

[zgrams at zgrams.zundelsite.org]

Zgram - Where Truth is Destiny:  Now more than ever!

June 28, 2004

Good Morning from the Zundelsite:

This news just reached me - and I hope that the US Supreme Court in 
the Guantanamo Bay detainee ruling is going to benefit Ernst in some 
way!  While he was not arrested in Tennessee as a "terrorist" - for 
that, his enemies had to invent a threadbare excuse - he was 
certainly treated like one, and it was left for Canada to suggest 
that he "might" be one!  The sneaky, low-life criminals!

I read the write-up to Ernst already, and his comment was:  "What did 
I tell you?  The old America we used to know and love is going to 
claw its way back!"  Let's hope so!

The Zundelsite is happy to proclaim the beginning of the dismantling 
of the Talmudic "Patriot Act"!  One brick at a time!  No surrender!

[START]

Detainees, Combatants Can Challenge Detentions
Supreme Court Limits Scope of Presidential Wartime Powers

By Fred Barbash
Washington Post Staff Writer
Monday, June 28, 2004; 2:25 PM


In two crucial decisions today on the scope of presidential wartime 
powers, the Supreme Court rejected the Bush administration's claim 
that it can hold suspected terrorists or "enemy combatants" on 
American soil without giving them a day in court.


The court said detainees, whether American citizens or not, retain 
their rights, at least to a legal hearing, even if they are held at 
the U.S. naval base in Guantanamo Bay, Cuba. Guantanamo Bay is under 
U.S. control and thus appropriately within the jurisdiction of U.S. 
courts, the high court ruled.

The president's constitutional powers, even when supported by 
Congress in wartime, do not include the authority to close the doors 
to an independent review of the legality of locking people up, the 
justices said.

"We have long since made clear that a state of war is not a blank 
check for the President when it comes to the rights of the nation's 
citizens," Justice Sandra Day O'Connor wrote in Hamdi et al v. 
Rumsfeld.

The rulings were the court's most significant statement in decades on 
the scope of presidential war powers to deal with "enemy combatants," 
such as someone seized on a battlefield in Afghanistan. Those powers, 
under the constitution, are insufficient to close the doors of the 
federal courts, the high court said.

The administration's detention policies have been among the most 
controversial outgrowths of its war on terrorism, provoking 
significant political and legal debate between those who felt the 
government had gone too far and those who believed its actions were 
intrinsic to the president's constitutional role as 
commander-in-chief.

Four justices -- a plurality -- said congress did indeed authorize 
detention of citizens. But the administration secured only one vote 
-- that of Justice Clarence Thomas -- for the proposition of 
detention of a citizen without any hearing. Thomas, dissenting, said 
he would affirm the lower court ruling overturned today.

The decisions came in a package of cases all related to arrests after 
Sept. 11, 2001, of people deemed terrorists or enemy combatants by 
the government.

The cases were Hamdi et al v. Rumsfeld and Rasul et al v. Bush. In a 
third related case, the court declined on technical grounds to rule 
on the merits of a challenge brought by Jose Padilla, who was 
arrested in Chicago after a flight from Pakistan, sending the case 
back to a lower court in South Carolina.

O'Connor was joined in the Hamdi case by Chief Justice William H. 
Rehnquist and Justices Anthony M. Kennedy and Stephen G. Breyer. 
Justices David H. Souter and Ruth Bader Ginsburg agreed with 
O'Connor's result, but took issue with the plurality's holding that 
the detentions were implicitly sanctioned by Congress when it voted 
to authorize the use of force in the war on terrorism.

Justices Antonin Scalia and John Paul Stevens dissented but not in 
support of the administration. Indeed, Scalia declared that there is 
only one way to prosecute citizens accused of aiding the enemy -- to 
treat them as "traitors subject to the criminal process."

". . . A view of the Constitution that gives the Executive authority 
to use military force rather than the force of law against citizens 
on American soil flies in the face" of the Constitution and of 
American traditions, Scalia wrote.

In the Rasul case, which involved foreigners held at Guantanamo, 
Stevens wrote for the court, joined by O'Connor, Souter, Ginsburg and 
Breyer. Scalia, Rehnquist and Thomas dissented, saying that 
foreigners arrested overseas do not have access to the U.S. courts.

"Today's historic rulings are a strong repudiation of the 
administration's argument that its actions in the war on terrorism 
are beyond the rule of law and unreviewable by American courts," 
Steven Shapiro of the American Civil Liberties Union said in a 
statement.

Michael Ratner of the Center for Constitutional Rights, which brought 
the Guantanamo case, said, "This is a major victory for the rule of 
law and affirms the right of every person, citizen or noncitizen, 
detained by the United States to test the legality of his or her 
detention in a U.S. court."

There was no immediate reaction from the Bush administration.

Yaser Esam Hamdi, an American citizen born in Louisiana, was captured 
by the Northern Alliance in Afghanistan in 2001 and turned over to 
the U.S. military, which transferred him to a brig in Charleston, 
S.C. Hamdi's father sought a habeas corpus review of his son's 
imprisonment. The government, supported by the U.S. Court of Appeals 
for the Fourth Circuit, contended that as an enemy combatant, he 
could be held indefinitely without formal charges or proceedings.

O'Connor wrote that the congressional resolution authorizing the use 
of force against terrorism did indeed support detention of Hamdi. But 
neither that act nor the constitution overrides "the fundamental 
nature of a citizen's right to be free from involuntary confinement 
by his own government without due process of law . . . "

"Striking the proper constitutional balance here is of great 
importance to the Nation during this period of ongoing combat," 
O'Connor wrote. "But it is equally vital that our calculus not give 
short shrift to the values that this country holds dear or to the 
privilege that is American citizenship."

She said a citizen detained in this fashion must receive notice of 
the "factual basis" for his classification and be given a "fair 
opportunity" to rebut the claim before "a neutral decisionmaker."

The opportunity for rebuttal need not be a conventional federal court 
hearing, with all its strict rules of evidence and process, she added.

But "due process demands some system for a citizen detainee to refute 
his classification," she said. While an "appropriately authorized and 
properly constituted military tribunal" might suffice, even then "a 
court that receives a petition for a writ of habeas corpus from an 
alleged enemy combatant must itself ensure that the minimum 
requirements of due process are achieved."

The second of today's decisions involved non-citizens, specifically, 
two Australians and twelve Kuwaitis, who were captured abroad during 
hostilities between the U.S. and the Taliban in Afghanistan.

The government relied on a World War II era case called Eisentrager, 
in which the Supreme Court denied a habeas corpus hearing to German 
citizens captured in China, convicted of war crimes by a military 
commission and imprisoned in occupied Germany.

Stevens said that case did not apply. The enemy combatants in today's 
case, he said, are not nationals of countries at war with the U.S.

Unlike the Germans, they have never been afforded access to any 
tribunal, "much less charged with and convicted of wrongdoing," 
Stevens wrote.

"And for more than two years they have been imprisoned in territory 
[Guantanamo] over which the United States exercises exclusive 
jurisdiction and control," he continued.

Moreover, Stevens wrote, nothing in the law or in previous rulings 
"excludes aliens detained in military custody outside the United 
States" from seeking hearings in the federal courts.

Scalia, in dissent, wrote that the "consequence of this holding, as 
applied to aliens outside the country, is breathtaking. It permits an 
alien captured in a foreign theater of active combat to bring" suit 
against the Secretary of Defense.

"The 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," Scalia wrote.