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Supreme Court and Enemy Combatant Update
By Alex Pierson
July 27, 2004

The Supreme Court recently ruled on two of the major terrorism cases, sidestepping the third case on a technicality and leaving many questions still to be answered. The decisions were partial victories for both the rights of those being detained, as well as the Bush Administration. The first case was set out to determine legality of holding "enemy combatants" at Guantanamo Bay and whether or not they can be legally tried in American courts. The second case was to determine the status of Yaser Esam Hamdi, an American citizen, being held without charge by the military. The third case was to also determine the status of Jose Padilla, another American citizen, being held without charge by the military. Padilla must re-file his lawsuit due to initiating his case in New York rather than South Carolina, where he is currently being held.

The Supreme Court determined that the U.S. military must provide some opportunity to due process for the 595 detainees in Guantanamo Bay to challenge their status as an 'enemy combatant'. The label is defined as "an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces engaged in hostilities against the United States or its coalition partners" during the war in Afghanistan that took place in late 2001. The U.S. government has received harsh criticism from human rights groups and the international community for holding these enemy combatants without charge, access to counsel, and without the concessions offered to prisoners of war under the third Geneva Convention, which include the right to be free from coercive interrogations.

Though the Supreme Court ruling states that the detainees could have their enemy combatant status tried in an United States court, it is more likely that the majority who appeal their status will do so through a military tribunal. The military tribunal will consist of three officers, one of whom will be a lawyer, in determining if the detainee has appropriately been labeled an enemy combatant. The detainees will have the assistance of a military officer, though not a lawyer, in helping to plead their case to the tribunal that they are not in fact an enemy combatant. Some human rights groups have stated that these tribunals will not give detainees due process since the tribunals consider hearsay evidence, records of interrogations, and assume that the government stance is correct unless proven otherwise. If the detainee is capable of showing his innocence as an enemy combatant, then he will be sent to his country of origin to face investigations and possible charges. Last month, the U.S. military stated that it had released 134 former enemy combatants from Guantanamo Bay, as well as an additional 4 French Nationals more recently, though these releases were decisions made by the government without a tribunal.

In a similar judgement to the enemy combatant case, the Supreme Court determined that U.S. citizen Yaser Esam Hamdi, who has been held by the government for the last two years without charge, does in fact have a right to a lawyer and to rebut the government claim before they can legally hold him as an enemy combatant. In the same opinion, Justice Sandra Day O'Connor also suggested that a military tribunal would "provide all the procedures sufficient even for a U.S. citizen." It is likely that a similar ruling will be determined for U.S. citizen Jose Padilla, once his case is appropriately brought to the Supreme Court.

Despite these rulings, many questions remain regarding the legal rights and futures of the detainees at Guantanamo Bay. Will a legal charge eventually be brought against the enemy combatants? Will the identities of the detainees eventually be released? How long will they be kept under the intense conditions they are currently subject to? Will they be given POW status at some point in the future? Will the 40 different countries that the detainees hail from demand to receive and try their own citizens? As these questions continue to loom unanswered, the commencement of the military tribunals shall begin to bring some order to the chaotic war on terrorism.



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