The Supreme Court has finally and decisively rejected the Bush administration’s outrageous claim that the President has the power to jail people he accuses of terrorist connections without access to lawyers or the outside world and without any possibility of significant review by courts or other judicial bodies.1 The Court’s long-awaited decisions, announced on June 28, have been widely hailed by editorial writers as an important defeat for the administration and a significant victory for civil and human rights. These commentators may have exaggerated the practical impact of the decisions, however. Though the Court did insist that even in war executive detention of suspected enemy combatants must be subject to some form of review by a neutral tribunal, it suggested rules of procedure for any such review that omit important traditional protections for people accused of crimes. The government may well be able to satisfy the Court’s lenient procedural standards without actually altering its morally dubious detention policies.
But in the longer run, the Court’s decisions might prove to have a more profound impact, because the justices’ arguments provide the legal basis for a much more powerful conclusion than the Court itself drew—that the Constitution does not permit the government to hold suspected enemy combatants or terrorists indefinitely without charging and convicting them of crimes, according them all the traditional protections of our criminal law process, unless they are treated in effect as prisoners of war. They would then have the benefits and protections allowed by international law, including the Geneva Conventions.
Forcing the government to make that choice would indeed require it drastically to change its treatment of detainees. International law forbids the coercive interrogation of prisoners of war, but the Bush administration now claims the right to subject its detainees to interrogation that is not only coercive but is often, as we now know, reinforced by humiliating and beating them as well as by subjecting them to relentless questioning, sleep and sensory deprivation, waterboarding, and other forms of torture.2 Here I will review the Court’s three decisions in order to identify both the risk that they will be interpreted to permit the administration to continue violating human rights and the possibility that one day they will be understood as forcing the government to respect those rights.
Hamdi v. Rumsfeld
Yasir Esam Hamdi is a twenty-four-year-old American citizen who was born in Louisiana, raised in Saudi Arabia, and captured in Afghanistan in 2001 by forces of the Afghan Northern Alliance fighting the Taliban. He was turned over to the American army. The government sent him to Guantánamo Bay but then, on discovering his citizenship, transferred him first to a military prison in Virginia and then to a naval brig in South Carolina, where he has remained for more than two years incommunicado and, until recently, with no access to a lawyer.
Hamdi’s father brought a habeas…
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