The Detainee Decisions: Part of a Changing Legal Landscape Post 9-11

6th Annual Program in Public Law Conference
Program in Public Law Events

On September 7 the Program in Public Law launched a series of events exploring the aftermath of 9-11 and its implications on U.S. law and government. Chris Schroeder, director of the Program in Public Law, and Scott Silliman, director of Duke’s Center for Law, Ethics and National Security, reviewed three recent decisions of the United States Supreme Court that relate to detainees in the unprecedented “war on terror,” individuals held in U.S. military custody for extended periods without charge.

Professor Chris Schroeder

While their fact patterns differed, all three cases exposed “a very complicated legal landscape,” noted Schroeder, Charles S. Murphy Professor of Law and Policy. “Once you begin delving into the legal issues you are quickly confronted with questions of American constitutional and statutory law, international law, and the reality that the U.S., as long as it’s been a republic, has really had two systems of criminal justice–the military justice system and the criminal justice system.”

Hamdi et al v. Rumsfeld, involving the habeas corpus petition of Yaser Hamdi, an American captured by Northern Alliance forces on a battlefield in Afghanistan, transferred to U.S. custody, and ultimately detained for over two years in a naval brig in Charleston, SC, raised the question of the metes and bounds of the use of the military system of justice to deal with a U.S. citizen. While Hamdi’s attorneys argued that his detention violated a 50-year-old statute, §4001a, which states that no American citizen can be detained except pursuant to an act of Congress–he needed to be charged with a crime–the government argued that he was properly held under the “force resolution” of September 18, 2001, which authorized the President to use “all necessary military force” to go after the perpetrators of September 11 and prevent their reoccurrence.

Professor Scott Silliman

In a multiple-opinion decision, with a plurality led by Justice Sandra Day O’Connor writing, the Court accepted the force resolution as statutory basis for Hamdi’s detention, but held that it did not suspend his Constitutional right of habeas corpus. However, the Court accepted the government’s claim that the hearing needed to accommodate what “serious Commander-in-Chief exigent circumstances.” Accordingly, explained Schroeder, the Court acknowledged that hearsay might need to be admissible (in order to avoid removing officers from the battlefield), a presentation of some “credible evidence” by the government might be sufficient to shift the burden of proof to the detainee to rebut the evidence, and a properly crafted military tribunal might satisfy the hearing requirement. The government is currently negotiating Hamdi’s release from custody–possibly to avoid the creation of a hearing process, speculated Silliman.

Jose Padilla, detained at Chicago’s O’Hare airport on suspicion of plotting activation of a so-called “dirty bomb,” was first brought into the civilian criminal justice system and held on a material-witness warrant. That warrant was quashed ex parte, and Padilla was turned over to military custody pursuant to a presidential order; he is also currently held in the naval brig in Charleston.

The Supreme Court decided Rumsfeld v. Padilla et al simply on the grounds that the habeas petition was filed in the wrong jurisdiction; Padilla’s attorneys had filed in the Southern District of New York, but should have filed in the district with jurisdiction over the warden. Schroeder and Silliman surmised, based on Hamdi, that when properly filed, Padilla would have a strong case for a full habeas review. Padilla, said Schroeder, is a significant decision limited to U.S. citizens, but applicable to cases in which the government is identifying and detaining individuals suspected of involvement in the war on terrorism, and held without charge.

“Will the federal courts say that if we can review habeas petitions, we can also review convictions regardless of what the President of the United States said in his November 13th order?”

- Professor Scott Silliman

On June 28 th the Court also ruled on Rasul v. Bush, a challenge to the detention of non-resident aliens–two Australians and 12 Kuwaitis–at Guantanamo Bay, Cuba, under the President’s November 13, 2001 order authorizing the detention of non-American combatants, and their prosecution by military commission. Arguing against habeas petitions by the detainees, the government relied on the Court’s 1950 decision in Johnsen v. Eisentrager, which dealt with German nationals accused of passing information on U.S. military operations to the Japanese at the end of World War II; they were captured and prosecuted by military commission at Nanking, China, convicted, and given prison sentences that were served in occupied Germany. Eisentrager, Silliman explained, held that there is no Constitutional right to review and federal court jurisdiction when the prisoner 1. is an enemy alien; 2. was never resident in the U.S.; 3. was captured outside the U.S. and held as a prisoner of war outside the U.S.; 4. was tried and convicted by military commission sitting outside the U.S.; 5. for violations of the laws of war committed outside the U.S.; and 6. was at all times imprisoned outside the U.S.

Justice Stevens, writing for the majority, found that while the Eisentrager Court had been bound by an earlier decision that the habeas statute did not allow federal courts to hear petitions when the petitioner was outside the jurisdiction, the law changed subsequently with Braden v. 30th Judicial District Court. Avoiding the Constitutional question, the Court held that there is now a statutory right of habeas corpus when the custodian can be served. The Court also distinguished the Rasul detainees from those in Eisentrager on several counts, including the fact that they were detained without access to any tribunal in a territory over which the U.S. exercises effective jurisdiction and control, regardless of the fact of ultimate Cuban sovereignty over Guantanamo Bay.

“[Justice Stevens] also said that nothing in Eisentrager precludes the ‘privilege of litigation’ in the federal courts,” noted Silliman. “If that doesn’t mean habeas, what else could it mean? How about [lawsuits under] the Alien Tort Claims Act or the Violation of Torture statutes?

“Johnsen v. Eisentrager had been interpreted as being the main shield keeping the federal courts out of the war on terrorism. All of a sudden, the Supreme Court, on the 28th of June, opened the door a crack, at least, based on statutory interpretation,” said Silliman, adding, by way of reminder, that the case dealt only with detention, and that newly created “combatant status review panels” are getting underway at Guantanamo Bay.

“We are at a pivotal time, right now, in finding out once in 50 years, how much of a role there is for the federal judiciary in reviewing presidential decisions in the war on terrorism,” he went on. “Rasul v. Bush very clearly is limited to Guantanamo Bay, but the logic can extend elsewhere. Will the federal courts say that if we can review habeas petitions, we can also review convictions regardless of what the President of the United States said in his November 13th order? It is an exciting time to be studying law and national security policy and to see for once in 50 years a redrawing of the legal landscape.”

The “detainee” decisions, with commentary, can be accessed via the Program in Public Law’s Supreme Court online website.

“Interrogation, Detention and the Powers of the Executive–A Series on Roundtables” is the subject of the Sixth Annual Conference of the Program in Public Law on Friday, September 17. The series will continue on September 22 with a talk by 9-11 Commissioner Jamie Gorelick. A talk by UCLA Law Professor Norm Abrams on trying international terrorists, originally scheduled for September 10, has been postponed.