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VOICE OF AMERICA
SLUG: 7-38802 Landphair-SCOTUS Detainee Ruling React
DATE:
NOTE NUMBER:

DATE=06/30/04

TYPE=English Feature

NUMBER=7-38802

TITLE=SCOTUS Detainee Ruling React

BYLINE=Ted Landphair

TELEPHONE=619-3515

DATELINE=Washington

EDITOR=Rob Sivak 619-2023

CONTENT=

/ / ATTN: LAW, WAR ON TERRORISM

[ED. NOTE: This story mentions just two of three cases addressed by the Supreme Court. A third, involving a U.S. citizen, Jose Padilla, was sent back to lower courts because of procedural errors.]

_

INTRO: The U-S Supreme Court on Monday [6/28] struck down key elements of the Bush Administration's policy of indefinitely imprisoning so-called enemy combatants in the war on terror. And legal experts are weighing in. VOA's Ted Landphair reports on one analysis of the Supreme Court's rulings as they affect the detainees, who are among the people President Bush has called the bad guys.

TEXT: Four Georgetown University Law Center professors -- including two who served in presidential administrations and one who is advising lawyers representing detainees in Guantanamo Bay, Cuba -- agreed that the Supreme Court flexed its muscles on Monday. It ruled that courts -- not just the president and the military -- have a say in what happens to alleged terrorists who are captured.

One case reviewed by the Court deals with foreign nationals held at the U-S military compound at Guantanamo Bay. Another involves Yasser Hamdi, an American citizen captured on the battlefield in Afghanistan and now held in South Carolina.

David Cole, who has written a book about enemy aliens, told the gathering of law students and media that since they're held incommunicado, the detainees at Guantanamo might not even realize the Supreme Court granted them the right to challenge their detention. The government had argued that U-S courts have no authority over bases outside American soil, but the high court ruled otherwise.

Professor Cole said the president had asserted complete executive authority over the detention process -- which Mr. Cole called the trust us approach.

AUDIO CUT one COLE :40

The president has repeatedly urged this 'trust us' message. And there has been virtually no response from Congress -- no response from the other political branch. So had the court not stepped up to the plate, the president would have gotten away with it. In the Hamdi case, the Administration's position attracted one vote. One vote -- that of Justice Clarence Thomas. This is a court that is predominantly Republican, very conservative, and nonetheless they could get only one vote. You know, if you can't persuade Justice [Antonin] Scalia and Chief Justice [William] Renquist on a Republican administration assertion of government power, you're making a very weak argument indeed.

TEXT Professor Cole added that, in his view, international opinion heavily influenced the Supreme Court's ruling.

AUDIO CUT TWO COLE :27

The fact that the court even agreed to review the Guantanamo case was considered a surprise. After all, the Guantanamo detainees had lost unanimously in the lower courts, and the fact that the court took up the case, I think, speaks to the extent of international opprobrium [condemnation] that has been leveled against the United States for its actions in Guantanamo. That has been a black mark on the United States' reputation around the world, and I think the Supreme Court felt an obligation to address that.

TEXT Not surprisingly, Neal Katyal [pron: CATTY-yull], who is the chief counsel to military lawyers representing the detainees at Guantanamo Bay, agreed that the Administration took a beating on Monday.

CUT THREE KATYAL :39

The Administration's war on terror is utterly repudiated -- that stationing people at Guantanamo Bay means that he [the president] can strip them of any fundamental rights due to them; that he could strip them, indeed, of even access to the courts whatsoever. The Administration has said that despite the fact that the United States ratified the Geneva Conventions in 1955, and despite the fact that our own army regulations require these tribunals to determine whether someone is an enemy combatant, that the president can unilaterally cast those aside and say he need not give those rights to people, despite our treaty obligations and our own rules.

TEXT But Viet Dinh [pron: vee-ETT Dinn], a former assistant attorney general in the Bush Administration and a former law clerk to Justice Sandra Day O'Connor -- said the Supreme Court's ruling is not a repudiation so much as it is a reminder of the limits of executive power. Professor Dinh said the Court affirmed the president's broad powers to wage war, but insisted that procedures be put in place to guarantee the captives' rights.

AUDIO CUT FOUR DINH :27

The Supreme Court made it very clear that it remains open for the Executive [the Administration] to adopt a non-judicial process -- specifically, the military tribunal. So I think that there is a great deal of recognition by the court of the practical realities of war and the necessary trust that it must imbue in the executive [the president] in a time of war.

TEXT In other words, the government has a legitimate right to capture and hold its enemies -- but not interminably, and not without, at some point, some sort of hearing.

Had Congress paid more attention to the detainee situation, Professor Dinh added, the Administration's zeal might have been tempered.

AUDIO cut FIVE DINH :20

I think the decision provides much greater clarity as the executive goes forward in terms of what is safe legal harbor on how it would prosecute the war on terror. It's an implicit invitation for Congress to jump into the fray and help the executive with these types of inherently political decisions.

[/////BEGIN OPT/////]

TEXT Vicki Jackson, a former deputy U-S attorney general, said the Supreme Court decision involving the U-S citizen and alleged terrorist -- Yasser Hamdi -- could become a classic separation-of-powers case, testing the limits of Executive Branch authority.

AUDIO CUT SIX JACKSON :18

It plainly rejects the government's position that courts should have essentially no role in reviewing contested designations of citizens as enemy combatants. The opinion asserts the important role for courts in determinations affecting -- and I'm quoting -- 'the most elemental of liberty interests: the interest in being free from physical detention by one's own government.'

[/////END OPT/////]

TEXT Panelists at the Georgetown Law Center Forum were careful to point out aspects of the detainee situation that the U-S Supreme Court did NOT address. Are ALL captives -- including civilians -- entitled to hearings or even trials in U-S civilian or military courts? And even though the high court asserted that the president cannot hold detainees indefinitely without access to lawyers and some sort of hearing, it gave scant guidance on what the mechanism should be that would give detainees their day in court. [signed]

Vnn/tl/rms



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