Supreme Court Update
Supreme Court Closes Term with Landmark Due Process Decisions
Concluding its 2003-04 term in late June, the U.S. Supreme Court issued decisions in several cases of interest to the Section, including two in which the ABA filed Section-sponsored amicus curiae briefs.
In Hamdi v. Rumsfeld (No. 03-6696), in which the ABA filed a Section-sponsored amicus brief in support of Hamdi, a plurality of the Court (opinion by O'Connor) adjudged that due process of law requires that an American citizen held in U.S. custody on American soil be granted a meaningful opportunity to challenge the factual basis of that detention in court.
After Congress passed a resolution-the Authorization for Use of Military Force (AUMF)-empowering the president to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the Sept. 11, 2001, al Qaeda terrorist attacks, President Bush ordered U.S. armed forces to Afghanistan to subdue al Qaeda and quell the supporting Taliban regime. Hamdi, an American citizen whom the government has classified as an "enemy combatant" for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig in Charleston, S.C. Hamdi's father filed a habeas corpus petition on his behalf under 28 U. S. C. §2241, alleging, among other things, that the government's detention of his son without an opportunity to challenge that detention in court violates the Fifth and Fourteenth Amendments.
The U.S. Court of Appeals for the Fourth Circuit had held that, because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing allowing him to be heard or to rebut the government's factual assertions against him was necessary or proper, and that the AUMF's "necessary and appropriate force" language provided the authorization for Hamdi's detention. It also had concluded that Hamdi is entitled only to a limited judicial inquiry into the legality of his detention under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure.
The Supreme Court vacated and remanded the Fourth Circuit's judgment, with a plurality (O'Connor, Rehnquist, Kennedy, and Breyer) concluding that, although Congress constructively authorized the detention of combatants in the narrow circumstances alleged in Hamdi's case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker unless Congress has suspended the writ of habeas corpus, which it so far has not done in the context of combating terrorism. Absent its suspension, wrote Justice O'Connor, the writ "has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law." Justices Souter and Ginsburg disagreed with the plurality's conclusion that the AUMF authorized Hamdi's detention, but concurred with the plurality that, on remand, Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant.
In Rasul, et al. v. Bush, et al. (No. 03-334), the Court held 6-3 (opinion by Stevens) that U.S. courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay Naval Base, Cuba. The Court rejected respondents' primary submission that these cases are controlled by Johnson v. Eisentrager, 339 U.S. 763 (1950), in which the Court held that a federal district court lacked authority to grant habeas corpus relief to German citizens captured by U.S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in occupied Germany.
Petitioners here, said Stevens, differ from the Eisentrager detainees in important respects: they are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.
"At its historical core," Stevens emphasized, "the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest." The Court therefore reversed and remanded the judgment of the U.S. Court of Appeals for the District of Columbia that, under Eisentrager, Rasul and his fellow petitioners were not entitled to petition for habeas corpus relief.
In Rumsfeld v. Padilla (No. 03-1027), the Court held 5-4 (opinion by Rehnquist) that the federal habeas statute straightforwardly provides that the proper respondent to Padilla's habeas petition is "the person" having custody over him. Accordingly, Commander Marr, who is in charge of the U.S. Navy brig in Charleston, S.C., where Padilla currently is held, is the only proper respondent to Padilla's petition, not Secretary Rumsfeld. The Court therefore dismissed Padilla's petition without addressing its merits, holding that the U.S. District Court for the Southern District of New York did not have jurisdiction over Marr and thus to consider Padilla's petition. A U.S. citizen, Padilla had been brought to New York for detention in federal criminal custody after federal agents apprehended him while executing a material witness warrant issued by the district court. President Bush later designated him as an "enemy combatant" for allegedly plotting to commit a terrorist act in the United States on behalf of al Qaeda.
In Tennessee v. Lane (No. 02-1667), the Court held 5-4 (opinion by Stevens) that, as it applies to the class of cases implicating the fundamental right of access to the courts, Title II of the Americans with Disabilities Act (ADA), which provides for money damages for states' non-compliance with its terms, is a valid exercise of Congress' authority under section 5 of the Fourteenth Amendment to enforce that amendment's substantive guarantees.
Lane, a paraplegic, alleged that he was compelled to appear to answer a set of criminal charges on the second floor of a county courthouse that had no elevator. At his first appearance, he crawled up two flights of stairs to get to the courtroom. When he returned to the courthouse for a later hearing, he refused to crawl again or to be carried by officers to the courtroom. Consequently, he was arrested and jailed for failure to appear.
Lane and others sued the State of Tennessee under the ADA, alleging that, by failing to provide adequate accommodations for persons requiring the use of wheelchairs and other ambulatory devices, Tennessee and a number of its counties had denied them physical access to those courts in violation of Title II, which provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation or denied the benefits of the services, programs or activities of a public entity." 42 U.S.C. §12132. Tennessee had argued that Title II's requirement that states reasonably accommodate persons with disabilities at pain of money damages improperly abrogates state sovereign immunity under the Eleventh Amendment.
The ABA filed a Section-sponsored amicus curiae brief on Lane's behalf.