The Meaning of the Supreme Court's Decision on "Enemy Combatants"

by C. Clark Kissinger

Revolutionary Worker #1246, July 18, 2004, posted at

On June 28 the U.S. Supreme Court decided on three major cases that challenged the President's use of the military to kidnap people, label them "enemy combatants," and imprison them indefinitely solely on his say-so--without charges, access to an attorney, and judicial review. The cases stemmed from petitions brought against the holding of hundreds of foreign nationals at the U.S. naval base at Guantánamo, Cuba, and the holding of two U.S. citizens--Jose Padilla and Yaser Hamdi--at a naval base in Charleston, SC.

The Court's decisions were widely described in the media as a big setback for Bush. A statement from Justice Sandra Day O'Connor has been widely quoted--that "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

But little quoted in the media were O'Connor's other assertions--that "there is no bar to this Nation's holding one of its own citizens as an enemy combatant" and that rather than "innocent until proven guilty," the burden is on the imprisoned citizen to prove that he or she is not an "enemy combatant."

Writing in the Wall Street Journal, John Yoo, until recently an Assistant Attorney General in the Bush administration, made a revealing comment: "The justices implicitly recognized that the U.S. may use all the tools of war to fight a new kind of enemy.. Taken as a whole, the Court's message is unmistakable: The days when terrorism was merely considered a law enforcement problem and our only forces were limited to the FBI, federal prosecutors and the criminal justice system will not be returning."

The Role of the Supreme Court

While the Supreme Court did not give the President a blank check, it did give him a Gold Card with a very generous credit limit. The Supreme Court is not some neutral arbiter of justice. It is an integral part of the capitalist state that usually plays a more "stepped back" role in relation to the immediate policies of any administration and looks to the longer-term interests of the ruling class as a whole. (Of course, in the disputed Florida elections in 2000, the Supreme Court played a direct role in getting Bush & Co. into the White House.)

So the high court was trying to deal with certain contradictions for the ruling class arising from what Bush, Cheney, and Rumsfeld are hell-bent on doing around the world. There is a continuing contradiction with U.S. allies over holding their citizens in violation of international law at Guantánamo. British Prime Minister Tony Blair has been greatly weakened for allowing the U.S. to kidnap British citizens and hold them at Guantánamo with no legal rights.

There is also the tremendous fallout from the prison torture scandal at Abu Ghraib. This put pressure on the Supreme Court to at least take some cosmetic steps--especially after the following dialogue that took place in the oral arguments before the Court on May 27, just days before the torture scandal broke:

Justice Ginsburg: "But if the law is what the executive says it is, whatever is necessary and appropriate in the executive's judgment.what is it that would be a check against torture?"

Answer by the government: "Well, first of all there are treaty obligations."

Even as the government lawyer was talking about international treaties, this very same administration was shuffling around memos that sought to manufacture arguments for ignoring international treaties and laws in order to justify the torture of prisoners.

The Content of the Decisions

The case of Jose Padilla was perhaps the strongest challenge to the newly asserted presidential powers to arrest citizens and hold them without charges. Padilla was arrested in the U.S. by the FBI and turned over to the military only after he contested his detention in court. The Supreme Court dodged the issue entirely, dismissing his petition on the grounds that it should have been filed in South Carolina where he is held now, rather than in New York where he was originally held. Padilla, who has now been held for over two years, will continue to be imprisoned under the same outrageous conditions and must start all over with a new court-appointed lawyer in South Carolina. (For the background on these cases, see "Dangerous Presidential Powers: From Citizen to `Enemy Combatant,' " RW #1236, April 11, 2004, and online at

Yaser Hamdi was captured by the Northern warlords in the Aghanistan civil war and turned over to the U.S. In the Hamdi case, the Supreme Court did set some parameters for how "enemy combatants" will now be handled. The Court held that Hamdi could have access to a lawyer and that he must have an opportunity to contest his designation as an "enemy combatant" before some "neutral decisionmaker." The court split four ways with four different opinions. A look at these four opinions gives a view of the spectrum of ruling class opinion on these issues.

First, Clarence Thomas supported the Bush administration 100%, saying that the courts had no business second- guessing the president's use of the military to fight "terrorists."

Second, Antonin Scalia (joined by Justice Stevens) said that unless the Congress officially suspends the right of habeas corpus, the president has no right to imprison U.S. citizens as "enemy combatants." If there is evidence that someone was fighting with an enemy against the U.S., they should be prosecuted for treason.

Third, four justices (O'Connor, Rehnquist, Kennedy and Breyer) said that these first two views are wrong. They said there must be some mechanism for prisoners to contest their designation as "enemy combatants." At the same time, that cannot be a full-blown court trial. And they said the president does have the power to detain people without trial. The justification they put forward is that such detention is to prevent the alleged "enemy combatants" from rejoining the enemy forces. It is not a punishment, and therefore the detainees are not entitled to rights given a criminal defendant!

Fourth, Justice Souter (joined by Justice Ginsburg) wrote that the No Detention Act of 1971 required that no one could be detained as an "enemy combatant" except by the authority of a law passed by Congress. The administration has claimed the Congressional grant of authority to use military force (of September 15, 2001) implicitly gave the president this authority. Souter and Ginsburg complain that it had to be explicit to be official, but they agreed with the four justices above that in any case there had to be access to lawyers and a chance for the prisoner to contest the allegations.

The effect of these various opinions is 1) that anyone (citizen or not) detained in U.S. territory as an "enemy combatant" has a right to see a lawyer and contest their status before some "neutral decisionmaker," and 2) the president can indeed designate persons (including citizens) as "enemy combatants" and detain them for the "duration of the conflict." And the "duration of the conflict" could be generations, as the government has frequently pointed out.

The Supreme Court did not take on, and in fact endorsed, the president's enormous grab for the power, in the name of presidential "war powers," to deal with alleged enemies as he sees fit, outside the scope of either domestic or international law. This can only lead to the deployment of the military against political opponents of the state and to the designation of political opponents of U.S. wars and interventions as "enemy combatants," based on accusations that they are giving support to enemies of U.S. imperialism or anyone standing in its way.

In short, the high court has put no real brake on the government's quickening moves toward a more fascistic form of rule.

Military Tribunals Endorsed

In the case of the approximately 600 prisoners from 42 different countries held at Guantánamo, the Bush administration lawyers had made the ridiculous argument that U.S. courts had no jurisdiction at Guantánamo because it was "sovereign Cuban territory." The Supreme Court ruled that U.S. courts did have jurisdiction over what happened at Guantánamo and prisoners held there could contest their status as "enemy combatants."

At the same time, the Court was very careful to point out that this did not necessarily mean a day in court. As O'Connor wrote for the plurality of the court: "There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal.. In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure the minimum requirements of due process are achieved." Here O'Connor was telling the administration, "If you guys don't want these cases to come into the courts, you'd better get your military tribunals up and running."

O'Connor went on to elaborate how such tribunals needn't trouble themselves with the niceties of protecting prisoners' rights: "Enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the government's evidence.the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria."

This makes a mockery of justice. How are prisoners held incommunicado for over three years--without access to lawyers, investigators, family, newspapers, mail, or telephones--supposed to able to prove that they are NOT "enemy combatants"?

It didn't take long for the administration to pick up on this roadmap on how to set up a kangaroo court. On July 7, the Defense Department announced that it had created a new "Combatant Status Review Tribunal" consisting of three military officers. This is the "neutral decisionmaker" before which the Guantánamo prisoners can try to prove that they have been wrongly held as "enemy combatants." The military claims that these officers would be neutral because they have no personal interest in the status of particular detainees. (Apparently their personal interest in getting their next promotion from the Commander-in-Chief is not a problem.)

At the same time, the Defense Department announced that more detainees at Guantánamo will be actually charged with crimes and tried before a military tribunal of five officers, which could sentence them to death.

Finally, the most scandalous aspect of the whole detainees issue has been effectively swept under the rug. The hundreds of detainees at Guantánamo and the two U.S. citizens being held by the military in the U.S. are actually the low-level "suspects." Prisoners who are considered high-level leaders of the Taliban, al-Qaida, the Iraqi resistance, or whatever have been spirited away to secret locations in countries where they can be tortured with no prospect of interference or exposure. "The Disappeared," an ABC Nightline program of May 13, reported that all this has been done under secret orders to the CIA signed by President Bush in early 2002.