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Homeland Security

28 June 2004

Supreme Court Rules on Enemy Combatant Detentions

Executive ability to hold detainees indefinitely restricted

By Michael Jay Friedman
Washington File Staff Writer

In a pair of decisions released June 28, the U.S. Supreme Court clarified the circum-stances under which the executive branch can detain alleged enemy combatants without formal charges. In the case of Hamdi v. Rumsfeld, the Court ruled that Congress had validly authorized such detentions after the 9/11 attacks, but that Constitutional due process requires that a United States citizen so held be afforded a "meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker."
Justice Sandra Day O'Connor's opinion outlined the required "meaningful opportunity." While an accused enemy-combatant might not be entitled to the "full protections" afforded other defendants, a citizen-detainee must be presented with the evidence justifying his detention and afforded a fair opportunity, including access to counsel, to rebut it. The Government might thus be allowed to rely upon hearsay evidence, or to enjoy a rebuttable presumption in favor of its evidence, so long as the detainee received a fair opportunity to respond.
Yaser Esam Hamdi, the Court held, had not received such an opportunity where he was imprisoned at Guantanamo naval base without a hearing or access to counsel and where the sole evidence offered against him was a "generic" government affidavit.
In the consolidated cases of Rasul v. Bush and Odah v. Bush, the Court addressed the claims of foreign nationals imprisoned at Guantanamo under similar circum-stances. It held that the federal courts have jurisdiction over the prisoners' challenges to the legality of their detention. The Court declined at this time to establish the legal standards that would govern those challenges, instead remanding these challenges to the lower federal courts for hearing.
Taken together, the decisions mark the Court's unwillingness to defer to executive branch claims of necessity. Writing in Hamdi, Justice O'Connor asserted that "Any process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise fall constitutionally short."

(The Washington File is a product of the Bureau of International Information Programs, U.S. Department of State. Web site:

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