Email from Katherine M. Gorove to Joshua L. Dorosin, JoAnn J. Dolan, Curtis A. Bradley re: Recent paper on the Supreme Court's 2004 'War on Terror' cases

UNCLASSIFIED RELEASED IN FULL
Tillery, Monica J
From:: Gorove, Katherine M (L-HRR)
Sent:: Thursday, July 22, 2004 12:08 PM
To:: Dorosin, Joshua L (L-PM); Dolan, JoAnn (L-PM); Bradley, Curtis A (L)

Subject:: FYI: Recent Rivkin and Casey paper on terror cases before Supreme Court
FYI

The Supreme Court's 2004 "War on Terror" Cases
By:
Lee A. Casey, David B. Rivkin, Jr., & Darin R. Bartram
Published by The Federalist Society
July 2004
On June 28, 2004, the Supreme Court handed down three important decisions in cases arising out of the war on terror. All three cases
were brought by, or on behalf of, individuals captured and detained by the United States based on their alleged association with al
Qaeda or the Taliban. Most of these men are being held at the United States Naval Station in Guantanamo Bay, Cuba, although two
American citizens are in the U.S. Naval Brig at Charleston, South Carolina.
Much of the media coverage of these decisions incorrectly suggests that they represent a defeat for the Bush Administration's policies. In fact, the decisions have affirmed a number of the critical legal and constitutional principles on which the Administration's treatment of the detainees has been based, and will require only modest revisions to the policies and procedures it already has adopted. Significantly, the cases affirm the basic validity of the wartime paradigm, chosen by the Administration after the September 11 attacks to handle captured enemy combatants, and effectively reject arguments - made by many Administration critics - that the criminal law is the appropriate model for handling these matters. Although each case will be discussed in turn, it should be underscored that they must be read together in order to fully understand the Court's views on these important issues.
RunsifeId v. Padilla, No. 03-1027 (June 28, 2004)
There is little doubt that the most contentious of the three cases was Rumsfeld v. Padilla, the "dirty bomber" case. Jose Padilla is an American citizen who allegedly trained with al Qaeda and entered the United States on May 8, 2002 with the purpose and intent of detonating a radiological, or "dirty," bomb. He was taken into custody at O'Hare International Airport in Chicago, and then transferred - on the basis of a material witness warrant - to New York City, where he was assigned counsel. A few days later, however, the President re-designated Padilla as an "enemy combatant," and ordered his transfer to military custody. Padilla is now held in the Naval Brig at Charleston, South Carolina.
Padilla's lawyer brought a habeas petition on his behalf in the United States District Court for the Southern District of New York ­although the government contested his right to counsel in the context of that civil process. The District Court ruled that Padilla was entitled to counsel, but also made clear that the President was within his authority to designate Padilla as an enemy combatant, and that any judicial review of this decision would have to accord significant deference to the Executive. On appeal, the Second Circuit reversed this decision, concluding that Padilla - as an American citizen - could not be held as an enemy combatant. Rather, the court's two judge majority ruled that the government would have to process Padilla through the ordinary criminal justice system, on the basis of an indictment and resulting in a full criminal trial, or release him from custody.
In reaching this result, the Second Circuit majority relied particularly on 18 U.S.C. § 4001(a), the so-called "Non-Detention Act,"
reasoning that this law forbade the prolonged detention of an American citizen absent a specific congressional enactment to the
contrary. The court did not consider that Congress' September 18, 2001 Joint Resolution, authorizing the use of "all necessary and
appropriate force against those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons," was sufficient to meet this
standard. Overall, this represented a major defeat for the government's position.
The Supreme Court, in a 5-4 vote, reversed. They did not, however, reach the merits of whether the President could designate Padilla as an enemy combatant or the Non-Detention Act's applicability. Rather, the Court ruled that Padilla's habeas petition had been filed in the wrong federal district, because his "immediate custodian," to whom the writ would have to issue, is located in the District of South Carolina, not in the Southern District of New York.
Writing for the majority, Chief Justice Rehnquist explained that, based on the weight of Supreme Court precedent, a habeas petition
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: FRANK E SCHMELZER UNCLASSIFIED DOS-001023
DATE/CASE ID: 16 DEC 2004 200303827

UNCLASSIFIED

can only be filed in a district court with jurisdiction over the prisoner's immediate custodian, i.e., the "warden of the facility where the
prisoner is being held, not the Attorney General or some other remote supervisory official." It rejected the Second Circuit's position
that, because Secretary of Defense Rumsfeld has "legal control" of Padilla (and could be reached on the basis of New York State's
"long-arm" statute), he was the proper respondent. Therefore, if Jose Padilla wishes to seek his release through a writ of habeas
corpus, he must refile his petition in the United States District Court for the District of South Carolina. In dissent, Justice Stevens
(joined by Justices Souter, Ginsburg, and Breyer), argued that the Court should have reached the merits of Padilla's petition because of
the questions of "profound importance" it presented.
Hamdi v. Rumsfeld, No. 03-6696
Although the Supreme Court was badly fractured in Hamdi v. Rumsfeld -with a plurality opinion authored by Justice O'Connor (joined by Chief Justice Rehnquist, Justice Breyer and Justice Kennedy), an opinion concurring in the judgment but also dissenting in part, authored by Justice Souter (joined by Justice Ginsburg), and dissents by Justice Scalia (joined by Justice Stevens) and Justice Thomas
-the decision represents a significant victory for the Bush Administration. A clear majority, including Chief Justice Rehnquist, and
Justices O'Connor, Breyer, Kennedy and Thomas, explicitly recognized the President's legal authority to designate individuals
(including American citizens) as enemy combatants, and to hold such individuals in custody without criminal charge or trial for the
entire duration of an armed conflict.

Yasser Hamdi was born in the State of Louisiana and, as a result, is a United States citizen. However, he is also a citizen of Saudi
Arabia, where he was raised. In 2001, he was turned over to American forces in Afghanistan by the Northern Alliance. Since April
2002, he has been held as an enemy combatant, currently in the Charleston Navy Brig. Hamdi's family sought his release through a
writ of habeas corpus, a petition that was ultimately rejected by the United States Court of Appeals for the Fourth Circuit. That court
reasoned that Hamdi had been detained as an enemy combatant in a "zone of combat," that the President had the authority to hold him
in this status, and that the government had produced sufficient evidence to support his detention.
On review, the Supreme Court reversed and remanded, but only because Hamdi had not been given any opportunity to rebut the
government's factual allegations. Four justices concluded that the President does have the constitutional power to designate individuals
as enemy combatants in the context of an armed conflict, even if they may be American citizens, and that such individuals can be held,
without charge or criminal trial, pending the end of hostilities.

They relied, in large part, on the Supreme Court's 1942 ruling in Ex Pane Quinn, 317 U.S. 1 (1942), where a unanimous Court had
upheld the President's right to detain enemy combatants, including citizens, during wartime. (The Court's reliance on Quinn has
effectively revitalized this case and implicitly rejected arguments, advanced by the Administration's critics, which challenged the
continuing viability of that important decision.) The plurality further rejected arguments that the Non-Detention Act, 18 U.S.C. § 4001
(a), prohibited the detention of American citizens, finding the necessary authorization in Congress' September 18, 2001 Joint
Resolution authorizing the use of military force against those responsible for the September 11 attacks and their allies. On both of these
points, although in dissent, Justice Thomas agreed with the plurality. Thus, there are actually five votes supporting these critical
conclusions. It should be noted here that the Non-detention Act-related arguments were prominently featured in the Second Circuit's
Padilla decision; hence, the plurality and Justice Thomas' rejection of these arguments in the context of Hamdi is all the more notable.

At the same time, the plurality also concluded that "a citizen-detainee" must be provided with an opportunity to challenge his or her
designation as an enemy combatant, at least to the extent of receiving "notice of the factual basis for his classification, and a fair
opportunity to rebut the government's factual assertions before a neutral decisionmakcr." Slip Op. at 26.
Significantly, the Court did not rule that this process must be afforded in the Article III civilian courts through a habeas corpus
proceeding. Rather, the plurality suggested that the "standards we have articulated could be met by an appropriately authorized and
properly constituted military tribunal," similar to the "Article V" tribunals already established by Army regulation in cases where the
Geneva Conventions apply. Id. at 31. Only if the government fails to provide such a process must the courts "ensure that the minimum
requirements of due process are achieved." Id. at 31-32. This conclusion, while, of course, a logical outgrowth of the application of the
military justice paradigm, represents a significant augmentation of the President's power.

In addition, the standard to be applied in either case is highly deferential to the government. Once it "puts forth credible evidence that
the habeas petitioner meets the enemy combatant criteria," the burden can be shifted to the detainee to prove that he is•not an enemy
combatant. Id. at 27. This, according to the plurality, "would meet the goal of ensuring that the errant tourist, embedded journalist, or
local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support
for its conclusion that the detainee is in fact an enemy combatant." Id. In addition, the plurality concluded that the detainees would be
entitled to assistance of counsel in the context of this process, a position that appears to command at least six votes (including Justices
O'Connor, Kennedy, Breyer, Souter, Ginsburg and Chief Justice Rehnquist) - although no particular rationale was offered.
Justice Souter and Justice Ginsburg concurred in the plurality's judgment, so as to ensure that Hamdi received an opportunity for some hearing, although they would have ruled that the Non-detention Act prevented his continued detention in the absence of a criminal charge. Justice Thomas dissented, arguing forcefully that the designation of individuals as enemy combatants was a matter for the
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claimant's immediate custodian, the Guantanamo detainees may "forum shop" in any of the Nation's 94 judicial districts. "For this
Court to create such a monstrous scheme in time of war, and in frustration of our military commanders' reliance upon clearly stated
prior law, is judicial adventurism of the worst sort." Id. at 20.
Whether the dire predictions of the dissent actually materialize will depend on whether the Executive Branch adopts an adequate military procedure, as outlined by the plurality in Hamdi, that offers detainees a meaningful opportunity to challenge the factual basis of their designation as enemy combatants. Although the Hamdi decision addressed the rights of citizens, it is unlikely that the Court would require more elaborate procedures for similarly situated aliens. Significantly, the majority in Rand specifically declined to address the question of "what further proceedings" would be necessary, but limited its decision to an affirmation that the federal courts do have jurisdiction to determine tht legality of detentions at Guantanamo Bay.
Conclusion:
Overall, the three "war on terror" decisions, issued by the Supreme Court on June 28, reaffirmed the President's core authority to capture and detain enemy combatants in time of war, and to hold such individuals, without charge or criminal trial, for the duration of hostilities. Detainees, however, must be given the opportunity to challenge the factual basis of their designation as enemy combatants, although this likely can be achieved in the context of a military, rather than a civilian, proceeding. Once the government has submitted some "credible" evidence that the individual was part of, or supporting, forces hostile to the United States or its allies, the burden of proof shifts to the detainee, who must then show that he was not associated with those forces. The detainee is entitled to legal counsel for the purposes of this proceeding.
Although these rules were established in the Hamdi case, which dealt with a U.S. citizen detainee, the relevant rationale will extend this system to non-citizens, who seek to challenge their detention at Guantanamo Bay. Thus, although the Court recognized the right of detainees held beyond the territory of the United States to challenge their captivity, that challenge will only take place in a federal court if the Executive Branch fails to provide a military proceeding that meets the criteria set forth in the Hamdi plurality opinion.
In fact, the review procedures already established for the Guantanamo detainees go a long way towards meeting these criteria. As a
result, rather than requiring a fundamental alteration in the way the government is dealing with these issues, as a practical matter, the
Court's decisions will require the refinement and augmentation of existing procedures. The government will now, presuniably, revise
those procedures as necessary to ensure compliance with the Court's decisions, and begin to process the detainees.

• * The authors are partners in the Washington, D.C., office of Baker & Hostetler LLP. Messrs. Casey and Rivkin served in the Justice Department under Presidents Reagan and George H.W. Bush.
Janice A. Smith
Special Assistant/Public Affairs
Bureau of International Organization Affairs
Rm. 6323
U.S. Department of State
2201 C Street NW, Washington, DC 20520
202-647-9034; fax: 202-647-7385

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