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Supreme Court Ends Term With Reaffirmation of Rule of Law During Times of National Crisis
by Open-Publishing - Sunday 4 July 2004NEW YORK — The Supreme Court Term that ended today will
long be remembered for its emphatic repudiation of the
Bush administration’s claim that it can conduct the war
on terrorism as it sees fit with virtually no
opportunity for meaningful judicial review, the American
Civil Liberties Union said today.
NEW YORK — The Supreme Court Term that ended today will
long be remembered for its emphatic repudiation of the
Bush administration’s claim that it can conduct the war
on terrorism as it sees fit with virtually no
opportunity for meaningful judicial review, the American
Civil Liberties Union said today.
Insisting that a system of checks and balances is
essential to safeguarding both liberty and security, the
Court ruled that foreign citizens detained at Guantánamo
Bay and American citizens detained in military brigs are
both entitled to their day in court.
’These are truly historic decisions,’ said Steven R.
Shapiro, the ACLU’s national legal director. ’The
administration has treated the rule of law as an
inconvenience in the war against terrorism. In
response, the Supreme Court has sent a powerful message
that the end does not justify the means, and that it
will not sit on the sidelines while the rule of law is
ignored.’
The torture scandal at Abu Ghraib was not explicitly
mentioned in any of the Court’s opinions. ’Even still,’
Shapiro said, ’it is hard to believe that it did not
affect the Court and reinforce its view that unchecked
power invites abuse.’
The administration’s opportunistic approach to the rule
of law is perhaps best illustrated by its shifting
positions on the legal status of our naval base at
Guantánamo Bay. In classified memos that have now been
released, the administration argued that the Torture Act
does not apply to Guantánamo because it is functionally
part of the United States. Before the Supreme Court,
however, the administration contended that Guantánamo is
still part of Cuba and thus the detainees being held
there have no right to challenge the legality of their
detention in federal court.
The Supreme Court ruled otherwise in Rasul v. Bush
(03-334), holding that ’the federal courts have
jurisdiction to determine the legality of the
Executive’s potentially indefinite detention of
individuals who claim to be wholly innocent of
wrongdoing.’ The case was thus sent back to the lower
courts to determine whether the detention policies at
Guantánamo Bay are consistent with the Constitution and
America’s treaty obligations.
The administration’s efforts to evade judicial review
were likewise rejected in Hamdi v. Rumsfeld (03-6696).
Unlike the foreign nationals detained at Guantánamo Bay,
Yaser Hamdi is an American citizen who was captured on
the battlefield in Afghanistan. He has been held in
various American military brigs for more than two years
without charges and trial and, until very recently,
without any opportunity to consult his attorney. The
government contended that it could continue to hold
Hamdi in this condition indefinitely so long as it
presented a federal court with ’some evidence’ to
justify its decision to designate Hamdi as an ’enemy
combatant.’ In the government’s view, Hamdi was not
entitled to present his side of the story or to question
the government’s case.
The Supreme Court again disagreed. Four justices were
prepared to order Hamdi’s immediate release on the
ground that Congress had not authorized it. That view
did not command a majority. But eight members of the
Court agreed that Hamdi had been deprived of his due
process rights because he has never been given a
meaningful opportunity to be heard.
The Hamdi opinion also strongly suggests that the Court
has learned from its past mistakes and is no longer
willing to defer to executive claims of military
necessity in every instance, as it did when it upheld
the internment of more than 100,000 Japanese-Americans
during World War II. As Justice O’Connor wrote for the
plurality in Hamdi: ’[A] state of war is not a blank
check for the President when it comes to the rights of
the Nation’s citizens.’
Jose Padilla is the second known American citizen
currently detained in a military brig as an ’enemy
combatant.’ He is, without doubt, entitled to at least
the same due process protections that have now been
granted to Yaser Hamdi. Nevertheless, in Rumsfeld v.
Padilla (03-1027), the Court dismissed Padilla’s habeas
corpus petition on the theory that he had incorrectly
filed it in New York rather than South Carolina, where
he is presently being held. In all likelihood, Padilla
will soon file a new petition and, based on the language
in the Hamdi decision, may have a strong claim that he
is not subject to designation as an ’enemy combatant’
because he was arrested at O’Hare Airport rather than
captured on a foreign battlefield.
The issue of international human rights was before the
Court in a different context in Sosa v. Alvarez-Machain
(03-339), a case in which the ACLU served as co-counsel.
Resolving an issue that has become increasingly
contentious in recent years, the Court ruled that the
Alien Tort Claims Act, which was adopted as part of the
first Judiciary Act of 1789, allows aliens to sue for
damages in federal court for serious violations of
broadly accepted human rights norms. Although the
Court’s opinion did not provide a full list of human
rights violations covered by the Act, it seems clear
from the Court’s language that torture victims, among
others, can pursue damage claims against their torturers
in United States courts, even if the torture occurred
abroad.
In this particular case, the Court held that Alvarez-
Machain could not sue under the Alien Tort Claims Act
because he had not suffered ’prolonged’ arbitrary
detention, despite the fact that he had been kidnapped
from his home in Mexico at the direction of American
officials who believed that he had conspired to murder a
federal drug agent. And, even though he was acquitted
of that crime, the Court also ruled in the consolidated
case of United States v. Alvarez-Machain (03-485) that
he could not sue the federal government under the
Federal Tort Claims Act because it does not apply to
torts committed outside the United States.
On the final day of the Term, the Court revisited the
question of Internet censorship in Ashcroft v. ACLU
(03-218), and blocked enforcement of the Child Online
Protection Act in an important First Amendment ruling.
Adopted by Congress in 1998, the Act criminalizes
sexually explicit speech on the Internet that is
’harmful to minors,’ but does so in a manner that
effectively deprives adults of access to
constitutionally protected material.
Justice Kennedy’s opinion for the Court noted that ’[c]
ontent-based restrictions, enforced by severe criminal
penalties, have the constant potential to be a
repressive force in the lives and thoughts of a free
people.’ He then pointed out that the government had so
far failed to prove that its interest in protecting
children could not be served even more effectively by
allowing parents to rely on filtering software rather
than threatening Internet speakers with criminal
prosecution.
American elections will be shaped for many years to come
by two other decisions the Court issued this Term. In
McConnell v. FEC (02-1674), a case in which the ACLU
served as both plaintiff and co-counsel, the Supreme
Court upheld the major provisions of the Bipartisan
Campaign Reform Act, better known as the McCain-Feingold
campaign finance law. Title I of the Act severely
limits so-called ’soft money’ contributions to political
parties and candidates. Title II of the Act places new
restrictions on ’issue ads’ by unions and corporations,
including nonprofit corporations like the ACLU.
The far-reaching consequences of that decision were
evidenced last week when a complaint was filed with the
Federal Elections Commission seeking an order that bars
the distributors of Michael Moore’s new documentary,
’Fahrenheit 9/11,’ from broadcasting any ads for the
film that mention President Bush or show his image
during a three-month period that starts one month before
the Republican convention and extends until Election
Day.
In a second decision that received less attention but
may turn out to be even more consequential, the Court
effectively closed the door on future challenges to
partisan gerrymandering in Vieth v. Jubeliler (02-1580),
thus perpetuating a system in which incumbents are
virtually assured re-election and there are fewer
contested congressional seats with each new election
cycle.
Church-state issues figured prominently on the Court’s
docket this Term, as well, but the results were less
dramatic than anticipated. In the most closely watched
case, Elk Grove Unified School District v. Newdow
(02-1624), the Court ruled that a non-custodial parent
lacked standing to challenge a California school
district’s practice of reciting the Pledge of Allegiance
each morning with the phrase ’under God.’ The
underlying issue is unlikely to go away forever, but the
battle has at least been postponed.
In Locke v. Davey (02-1315), the Court gave state
legislatures breathing room in the ongoing debate over
school vouchers by holding that the Free Exercise Clause
did not require Washington State to extend a scholarship
program to students pursuing theology degrees. The
result was perhaps less surprising than the vote, 7-2,
and the opinion’s author, Chief Justice Rehnquist.
In Hibbs v. Winn (02-1809), the fourth direct ACLU case
this year, the Court upheld the power of the federal
courts to resolve a dispute about the constitutionality
of an Arizona tax credit scheme that, plaintiffs
claimed, acted as a government subsidy for religious
education. Had the Court ruled otherwise, it would have
been possible for states to avoid federal court review
of any unconstitutional program that they chose to fund
through tax credits rather than a direct government
expenditure.
For the second time in two years, the Court also
rejected a federalism challenge to a major civil rights
law when it held, in Tennessee v. Lane (02-1667), that
states could be sued for damages under Title II of the
Americans with Disabilities Act if they failed to
provide reasonable access to judicial proceedings for
people with disabilities.
A different sort of access issue was before the Court in
Cheney v. United States District Court (03-475), which
led to a well-publicized dispute over Justice Scalia’s
recusal even before the case was argued. The Court
ultimately stopped short of deciding whether Vice
President Cheney could be compelled to disclose the
identity of private advisors to the government energy
task force he chaired. But it did hold that the Vice
President could rely on mandamus jurisdiction, a so-
called ’extraordinary writ,’ to appeal a series of
discovery orders issued by the district court. The
lasting significance of the decision may lie less in the
actual ruling that in the majority’s expansive language
endorsing the principle of executive branch
confidentiality.
Two of the Court’s most important criminal law decisions
involved the Sixth Amendment. In Blakely v. Washington
(02-1632), the Court struck down a provision of
Washington State’s sentencing guidelines and, in the
process, called into question the constitutional
validity of the federal sentencing guidelines. In
Crawford v. Washington (02-9410), the Court
reinvigorated the Confrontation Clause by limiting the
prosecution’s ability to rely on out-of-court testimony,
a ruling that may have significant impact on future
terrorism investigations.
The Court’s Fifth Amendment record was mixed. In
Missouri v. Siebert (02-1371), the Court expressed
considerable displeasure with the increasingly common
practice of questioning criminal suspects without a
Miranda warning in the hope that they will confess, and
then be persuaded to repeat the confession after Miranda
warnings are given. In United States v. Patane
(02-1183), on the other hand, the Court held that the
failure to follow Miranda does not affect the
admissibility of physical evidence that is discovered as
a result of the suspect’s unwarned statements.
Finally, the Fourth Amendment again took a beating in a
series of lopsided decisions. In Hiibel v. Sixth
Judicial District Court of Nevada (03-5554), the Court
upheld a Nevada law that permits the police to arrest
someone who refuses to identify himself during a valid
street stop. And, in a trilogy of cases, the Court
upheld the right of police to search a car without a
warrant after they have arrested a ’recent occupant’ of
the car, Thornton v. United States (03-5165), the right
of the police to search all of the occupants of a car
when they find drugs concealed under the rear armrest
and no one claims ownership, Maryland v. Pringle
(02-809), and the right of the police to set up a
roadblock to investigate a week-old hit-and-run
accident, Illinois v. Lidster (02-1060).
In the end, however, this Term will be known for the
Court’s terrorism decisions. ’The state of civil
liberties is always perilous in periods of national
crisis,’ Shapiro said. ’The Court deserves great credit
for recognizing that the rule of law cannot be enforced
in the absence of meaningful judicial review.’