Three decisions, one big victory for civil rights.

In three recent cases, the Supreme Court emphatically upheld the rule of law and the rights of people detained as part of the war on terrorism:

* In Rasul v. Bush, the Court affirmed the rights of detainees at Guantanamo Bay, Cuba, to have their habeas corpus petitions heard in federal court. (1)

* In Hamdi v. Rumsfeld, the Court concluded that a U.S. citizen apprehended in a foreign country and held as an enemy combatant was entitled to due process and a meaningful factual hearing. (2)

* In Rumsfeld v. Padilla, the Court dismissed on jurisdictional grounds a challenge by an American citizen apprehended in the United States and held as an enemy combatant, ruling that Jose Padilla must sue in federal court in South Carolina, where he is being held, rather than in New York, where his case was litigated. But at least five justices clearly signaled that had they reached the merits of the case, they would have ruled in Padilla's favor and held that the government has no authority to detain an American citizen arrested in the United States as all enemy combatant. (3)

The significance of these cases can be appreciated only by understanding the Bush administration's position. In both the Supreme Court and the lower federal courts, the government claimed it had unreviewable authority to hold enemy combatants as part of the war on terrorism. In its briefs and oral arguments to the Supreme Court, the solicitor general's office said the president had inherent authority to detain individuals as enemy combatants and that the courts had no power to review such detentions. In Padilla, for example, Deputy Solicitor General Paul Clement said in oral argument before the Court that the only hearing an alleged enemy combatant is entitled to is answering questions in an interrogation.

If the Supreme Court had accepted these arguments, nothing could keep the government from arresting literally anyone and holding the person without due process. Under the government's position, even if the Guantanamo detainees were horribly tortured, no court could hear their claims. But the Supreme Court forcefully rejected this argument, ruling that courts can review detentions--even of detainees in the war on terrorism.

Rasul v. Bush

Since January 2002, the U.S. government has imprisoned over 600 individuals at Camp X-Ray, a military facility in Guantanamo. The case before the Supreme Court involved two habeas corpus petitions filed on their behalf. Rasul v. Bush (die tide under which both cases were decided) was brought by the parents of two detainees from Great Britain and one from Australia. Al Odah v. United States was brought by the families of 12 individuals. All are being held at Camp X-Ray.

In both causes the government moved to dismiss, contending that the federal courts lacked authority to hear the Guantanamo prisoners' habeas corpus petitions. In March 2003, the District of Columbia Circuit affirmed dismissal on those grounds and ruled that no court in the country could hear these petitions. (4)

The court of appeals based its conclusion on the Supreme Court's decision in Johnson v. Eisentrager, in which 21 German nationals sought habeas corpus review after U.S. soldiers arrested them in China for working in Japan on behalf of the German government during World War II. (5) A military commission convicted them of violating the laws of war by engaging in continued military activity, in Japan after Germany's surrender but before Japan's. After their conviction, the defendants were sent to a prison in Germany whose custodian was a U.S. Army officer.

The Supreme Court found that no federal district court had jurisdiction to hear their habeas petition. The D.C. Circuit equated the Guantanamo detainees with the Johnson ones and dismissed their argument on the same grounds.

The Supreme Court reversed that ruling in a 6-3 decision. Justice John Paul Stevens, writing for the majority, emphasized that the two cases differ in many important respects. In Johnson, the detainees had been tried by a military tribunal; the Guantanamo prisoners have never had any form of trial. The Court also stressed that unlike the German prison in Johnson, Guantanamo is functionally under U.S. control and sovereignty; Germany never was. The Court noted that the Guantanamo detainees, unlike those held in Johnson, are not citizens of nations that are at war with the United States and in fact deny having committed any acts of aggression against the United States.

The Rasul Court did not address what type of hearing must be accorded to the Guantanamo detainees, but the courts will probably say that a meaningful factual hearing before a military tribunal is sufficient. Yet the case is enormously significant because it ensures the Guantanamo prisoners' right to be heard in federal court and instructs courts to prescribe the appropriate procedures.

Hamdi v. Rumsfeld

Yaser Hamdi was arrested in Afghanistan and brought to Guantanamo Bay. There authorities discovered that he was a U.S. citizen and sent him to a military prison in South Carolina. He has been held ever since as an enemy combatant, without having been charged with any crime. His situation is identical to that of John Walker Lindh, the "American Taliban," except that Walker Lindh was indicted and pleaded guilty to crimes.

The Fourth Circuit agreed with the government that Hamdi was not entitled to any form of due process or judicial review. (6) The Supreme Court reversed, although without a majority opinion.

Two issues were before the Court. First: Does the federal government have the authority to hold an American citizen apprehended in a foreign country as an enemy combatant? In a 5-4 ruling, the Court said it did. Justice Sandra Day O'Connor wrote the plurality opinion, joined by Chief Justice William Rehnquist and Justices Anthony Kennedy and Stephen Breyer.

Hamdi argued that his detention violated the Non-Detention Act, which states that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress." (7) The Non-Detention Act was adopted in 1971 to repeal the Emergency Detention Act of 1950, which had allowed the government, during times of emergency, to detain individuals it deemed likely to commit espionage or sabotage. As O'Connor explained, "Congress was particularly concerned about the possibility that the [Emergency Detention] Act could be used to reprise the Japanese internment camps of World War II." (8)

But the plurality concluded that Hamdi's detention was authorized under another act of Congress: the Authorization for Use of Military Force Joint Resolution that was passed after the September 11, 2001, terrorist attacks." O'Connor stated that the resolution provides sufficient congressional authorization to meet the requirements of the Non-Detention Act and therefore permits Hamdi's detention. Justice Clarence Thomas, in a separate opinion, concluded that the president has inherent authority, under Article II of the Constitution, to hold Hamdi as an enemy combatant. (10)

The other four justices disagreed vehemently. In a powerful dissenting opinion, Justice Antonin Scalia, joined by Justice John Paul Stevens, argued that there is no authority to hold an American citizen in the United States as an enemy combatant without charges or a trial, unless Congress expressly suspends the writ of habeas corpus. Justice David Souter, in an opinion joined by Justice Ruth Bader Ginsburg, contended that to hold an American citizen as an enemy combatant violates the Non-Detention Act.

With five justices having ruled that the government can hold Hamdi as an enemy combatant, the Court addressed the second question: Is he entitled to due process? The Court ruled 8-1, with Thomas dissenting, that he is. Noting that imprisonment is obviously the most basic deprivation of liberty, the majority held that the government must afford due process to an American citizen apprehended in a foreign country and held as an enemy combatant.

The procedures required to afford due process are to be determined by applying a three-part balancing test set out in Mathews v. Eldridge: Courts must weigh the importance of the individual's interests, the ability of additional procedures to reduce the risk of erroneous deprivation of liberty, and the government's interests. (11)

Although the eight justices in the majority did not specify which procedures must be followed in Hamdi's case, they held explicitly that tie must be given a meaningful factual hearing. At a minimum, this includes notice of the charges, the right to respond, and the right to be represented by an attorney. However, the Court also suggested that hearsay evidence might be admissible and that the burden of proof could he placed on Hamdi.

In one sense, the Bush administration prevailed in Hamdi: The Court accepted its claim that it could hold U.S. citizens apprehended in a foreign country as enemy combatants. But in a more important way, the case is a significant victory lot civil liberties because the Court held that even a citizen arrested on a foreign battlefield must be given a meaningful factual hearing before being detained in the United States.

Rumsfeld v. Padilla

Jose Padilla, an American citizen, was arrested at Chicago's O'Hare Airport in May 2002 for allegedly planning to build and detonate a "dirty bomb" in the United States. He has been imprisoned since then but has not been indicted or tried for any crime. He, too, has been classified an enemy combatant. Padilla's situation differs from Hamdi's in that Padilla was arrested in the United States for a crime that he allegedly intended to commit in this country.

After his arrest, Padilla was taken to New York, where an attorney filed a petition to meet with him. Shortly thereafter, Padilla was transferred to a military prison in South Carolina. But litigation over his case remained in New York and ultimately wound up before the Second Circuit.

The Supreme Court, in a 5-4 decision, with the majority opinion written by Scalia, concluded that the New York court lacked jurisdiction to hear Padilla's case because a person must bring a habeas petition where he or she is being detained, against the person immediately responsible for the detention. In Padilla's case, this meant filing his petition in South Carolina against the head of the military prison there.

Stevens wrote for the four dissenters, lamenting that Padilla, who already has been held for more than two years, needs to start all over again. But there seems no doubt that Padilla has five justices on his side. In a footnote to his dissenting opinion, Stevens declared: "Consistent with the judgment of the court of appeals, I believe that the Non-Detention Act prohibits--and the Authorization for Use of Military Force Joint Resolution does not authorize--the protracted, in communicado detention of American citizens arrested in the United States." (12) Recall that Scalia was emphatic in his dissent in Hamdi, where he stated that a U.S. citizen cannot be held without trial unless Congress suspends the writ of habeas corpus.

So even though Padilla's legal challenge must begin again, apparently at least five justices believe that an American citizen apprehended in the United States cannot be held as an enemy combatant. That, too, is a strong rejection of the Bush administration's position and a resounding affirmation of the rule of law.

These rulings certainly do not resolve all the crucial issues concerning civil liberties and the war on terrorism. The administration still has not disclosed how many people have been detained. Critics believe serious abuses of rights, including unprecedented secret trials and invasions of privacy, are still occurring under the PATRIOT Act.

But with these three decisions, the Constitution--and all Americans--won. If the government position had prevailed, tomorrow you or I could be arrested and held indefinitely with no legal recourse. The Bush administration's assertion of authority to detain people without judicial review is inconsistent with the most basic constitutional principles, and the Supreme Court was right to reject it.

Notes

(1.) 124 S. Ct. 2686 (2004).

(2.) 124 S. Ct. 2633 (2004).

(3.) 124 S. Ct. 2711 (2004).

(4.) 321 F.3d 1134 (D.C. Cir. 2003).

(5.) 339 U.S. 763 (1950).

(6.) 337 F.3d 335 (4th Cir. 2003) (order denying rehearing en banc).

(7.) 18 U.S.C. [section] 4001(a) (2004).

(8.) 124 S. Ct. 2633, 2639.

(9.) Pub. L. 107-40, 107th Cong. (2001).

(10.) 124 S. Ct. 2633, 2674 (Thomas, J., dissenting).

(11.) 424 U.S. 319 (1976).

(12.) 124 S. Ct. 2711, 2735 n.8 (Stevens, J., dissenting).

ERWIN CHEMERINSKY is the Alston & Bird Professor of Law at Duke University School of Law.