The Supreme Court & Pending Cases on Terrorism Leutisha Stills Matt Talley April 28, 2008

2 Agenda n Overview of the Supreme Court u Supreme Court Justices u The Term of the Court u The Jurisdiction of the Court u The Caseload of the Court n Significant Historic Cases u Johnson v. Eisentrager u Rasul et al. v. Bush, President of the United States, et al. u Hamdi et al. v. Rumsfeld, Secretary of Defense, et al. u Rumsfeld, Secretary of Defense v. Padilla et al. u Hamdan v. Rumsfeld, Secretary of Defense n Current Cases before the Court

3 Supreme Court n Article III, §1, of the Constitution provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Supreme Court of the United States was created in accordance with this provision and by authority of the Judiciary Act of September 24, 1789 (1 Stat. 73). It was organized on February 2, n Power to nominate the Justices is vested in the President of the United States, and appointments are made with the advice and consent of the Senate. n Article III, §1, of the Constitution further provides that “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

4 Justices of the Supreme Court n The Supreme Court consists of the Chief Justice of the United States and such number of Associate Justices as may be fixed by Congress. The number of Associate Justices is currently fixed at eight (28 U. S. C. §1). u JOHN G. ROBERTS, JR. (Chief Justice) u JOHN PAUL STEVENS (Associate Justice) u ANTONIN SCALIA (Associate Justice) u ANTHONY M. KENNEDY (Associate Justice) u DAVID H. SOUTER (Associate Justice) u CLARENCE THOMAS (Associate Justice) u RUTH BADER GINSBURG (Associate Justice) u STEPHEN G. BREYER (Associate Justice) u SAMUEL A. ALITO, JR. (Associate Justice) u SANDRA DAY O’CONNOR (Retired Justice)

5 The Term of the Court n The Term of the Court begins, by law, on the first Monday in October and lasts until the first Monday in October of the next year. n Approximately 10,000 petitions are filed with the Court in the course of a Term. n In addition, some 1,200 applications of various kinds are filed each year that can be acted upon by a single Justice.

6 The Jurisdiction of the Court n According to the Constitution (Art. III, §2): u “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. u “In all Cases affecting Ambassadors, other public ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. u In all the other Cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

7 The Jurisdiction of the Court (Con’t) n Appellate jurisdiction has been conferred upon the Supreme Court by various statutes, under the authority given Congress by the Constitution. The basic statute effective at this time in conferring and controlling jurisdiction of the Supreme Court may be found in 28 U. S. C. §1251 et seq., and various special statutes.

8 The Caseload of the Court n The Court’s caseload has increased steadily to a current total of more than 10,000cases on the docket per Term. The increase has been rapid in recent years. n In 1960, only 2,313 cases were on the docket, and in 1945, only 1,460. Plenary review, with oral arguments by attorneys, is granted in about 100 cases per Term. n Formal written opinions are delivered in 80 to 90 cases. n Approximately 50 to 60 additional cases are disposed of without granting plenary review. n The publication of a Term’s written opinions, including concurring opinions, dissenting opinions, and orders, approaches 5,000 pages. Some opinions are revised a dozen or more times before they are announced.

9 Legislative History of Detainee Court Cases n Geneva Conventions of 1949 – set forth the treatment of prisoners of war; Supreme Court found them applicable in current court cases n Uniform Code of Military Justice (UCMJ) n Detainee Treatment Act of 2005 – provided how detainees were to be treated in cases of interrogation and other matters. n Military Commissions Act of 2006 – amended the Detainee Treatment Act of 2005 – defined “unlawful enemy combatants”, and established a commission giving authority to the President to determine who could be classified as “unlawful enemy combatants” and allow for detention of such classified prisoners indefinitely.

10 LEGISLATION IN CONGRESS n There are 14 pieces of legislation that have been introduced in either the House of Representatives or the U. S. Senate in an attempt to restore habeas corpus. n Most notable ones are HR 267 – Military Commissions Habeas Corpus Restoration Act of 2007 n HR 1415 – Restoring Constitution Act of 2007; Senate version is S. 576 n HR 1189 – Habeas Corpus Preservation Act of 2007; Senate version is S. 185 n HR 2212 – Requires the President to close Guantanemo Bay Detention Center; Senate version is S. 1249

11 Significant Historical Cases n Johnson v. Eisentrager, 339 U.S. 763 (1950) The United States Supreme Court held that the federal Constitution does not confer a right of personal security or immunity from military trial and punishment on alien enemies engaged in the hostile service of a government at war with the United States. The "aliens" concerned were German Nationals who were confined in the custody of the United States Army in Germany following their conviction by a military commission of having engaged in military activity against the United States in China after the surrender of Germany. The Court stated that the military authorities have a jurisdiction, during or following "hostilities" to punish those guilty of offenses against the laws of war, and the German Nationals did not have the right to a writ of habeas corpus. n This case gives six factors that need to be met for granting habeas relief: (a) enemy aliens (b) who have never been in the United States, (c) who are captured abroad, (d) tried by a U.S. military commission abroad, (e) for offenses committed outside of the United States, and (f) serving their punishments outside of the United States (in essence, persons who have never had anything to do with this country) are entitled to the use of this nation's court systems.

12 Significant Historic Cases n Rasul et al. v. Bush, President of the United States, et al. (June 28, 2004) u Pursuant to Congress' joint resolution authorizing the use of necessary and appropriate force against nations, organizations, or persons that planned, authorized, committed, or aided in the September 11, 2001, al Qaeda terrorist attacks, the President sent Armed Forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it. Petitioners, 2 Australians and 12 Kuwaitis captured abroad during the hostilities, are being held in military custody at the Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas. Petitioners filed suits under federal law challenging the legality of their detention. u Held: United States 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.

13 Significant Historic Cases n Hamdi et al. v. Rumsfeld, Secretary of Defense, et al. (June 28, 2004) u Petitioner 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 this habeas petition on his behalf under 28 U. S. C. §2241, alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments. u Hamdi asserted that he went to Afghanistan to do "relief work" less than two months before 9/11 and did not have received military training. u The appeals court held that, assuming that express congressional authorization of the detention was required by 18 U. S. C. §4001(a)-- which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress"-- the AUMF's "necessary and appropriate force" language provided the authorization for Hamdi's detention.

14 Significant Historic Cases u Held: The judgment is vacated, and the case is remanded. u Justice O'Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this 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 decision maker. u Justice Souter, joined by Justice Ginsburg, concluded that Hamdi's detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant. u O'Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Kennedy and Breyer, JJ., joined. Souter, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which Ginsburg, J., joined. Scalia, J., filed a dissenting opinion, in which Stevens, J., joined. Thomas, J., filed a dissenting opinion.

15 Significant Historic Cases n Rumsfeld, Secretary of Defense v. Padilla et al. (June 28, 2004) u Respondent Padilla, a United States citizen, was 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 for the Southern District of New York (Southern District) in connection with its grand jury investigation into the September 11, 2001, al Qaeda terrorist attacks. u Padilla’s counsel then filed in the Southern District a habeas petition under 28 U. S. C. §2241, which, as amended, alleged that Padilla's military detention violates the Constitution, and named as respondents the President, the Secretary, and Melanie Marr, the brig's commander. u The Government moved to dismiss, arguing, inter alia, that Commander Marr, as Padilla's immediate custodian, was the only proper respondent, and that the District Court lacked jurisdiction over her because she is located outside the Southern District.

16 Significant Historic Cases u That court held that the Secretary's personal involvement in Padilla's military custody rendered him a proper respondent, and that it could assert jurisdiction over the Secretary under New York's long-arm statute, notwithstanding his absence from the District. u On the merits, the court accepted the Government's contention that the President has authority as Commander in Chief to detain as enemy combatants citizens captured on American soil during a time of war. u The Second Circuit agreed that the Secretary was a proper respondent and that the Southern District had jurisdiction over the Secretary under New York's long-arm statute. u The appeals court reversed on the merits, however, holding that the President lacks authority to detain Padilla militarily. u Held: (1) Because this Court answers the jurisdictional question in the negative, it does not reach the question whether the President has authority to detain Padilla militarily; (2) The Southern District lacks jurisdiction over Padilla's habeas petition.

17 Significant Historic Cases n Hamdan v. Rumsfeld, Secretary of Defense (June 29, 2006) u During the hostilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni national, and turned him over to the U. S. military, which, in 2002, transported him to prison in Guantanamo Bay, Cuba. u Over a year later, the President deemed Hamdan eligible for trial by military commission for then-unspecified crimes. u In habeas and mandamus petitions, Hamdan asserted that the military commission lacks authority to try him because (1) neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him. u The District Court granted habeas relief and stayed the commission's proceedings, concluding that the President's authority to establish military commissions extends only to offenders by such a commission under the law of war; that such law includes the Third Geneva Convention.

18 Significant Historic Cases u The DC Circuit reversed. Although it declined the Government's invitation to abstain from considering Hamdan's challenge, the appeals court ruled, on the merits, that Hamdan was not entitled to relief because the Geneva Conventions are not judicially enforceable. u Held: The judgment is reversed, and the case is remanded.

19 Current Cases Before the Supreme Court n Boumediene v. Bush u Issue: Do Guantanamo prisons have a constitutional right to judicial review of their detention? u Implication: Could open the prison camp to independent scrutiny. n Munaf v Geren/ Omar v. Geren (Both Cases Combined and heard as a single case) u Issue: Can U.S. military transfer a U.S. citizen in Iraq to Iraqi authorities for trial or execution without review of a U.S. Court? u Implication: Could bring scrutiny of the legal basis of the U.S. presence in Iraq and the quality of the Iraqi justice system developed with the help of the United States

20 Current Cases Before the Supreme Court n Boumediene v. Bush (questions raised by the Court) 1.Whether the Military Commissions Act of 2006, Pub. L. No , 120 Stat. 2600, validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay. 2. Whether Petitioners’ habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.

21 Current Cases Before the Supreme Court n Munaf v Geren/ Omar v. Geren 1. Two U. S. Citizens, Shawqi Omar and Mohammad Munaf, have been detained in Iraq for more than two and three years, respectively, and the government refuses to justify their detention. Omar was seized in October 2004, while living in Iraq; he had moved there to find work in construction. Munaf was working as a translator for three Romanian journalists working in Iraq, and was seized in March The Brennan Center for Justice has filed habeas corpus petitions on behalf of Omar and Munaf in the DC District Court. The government’s position is that it does not have to justify Omar’s or Munaf’s detention. 2. Can the government detain its own citizens and avoid all judicial review simply by saying so?

22 Issues n The Executive Branch is seeking to detain foreign or dual citizenship prisoners held in American detention facilities, at home or abroad, by declaring they do not have a right to due process in American courts. Their actions serve to eviscerate the concept of checks and balances, by nullifying the participation of the judicial branch of government. The system of checks and balances is the very foundation of American governmental operation and function, and was implemented by the Founding Fathers to prevent the consolidation of governmental power in any one branch of government.

23 Interest Groups n Executive Branch – wants to consolidate power to act as it wants without judiciary or legislative review n Legislative Branch – wants to return checks and balances to the point of “checking” the Executive Branch. n Judiciary Branch – wants to reassert its authority to interpret and apply the law with the expectation that the other two branches of government will follow and comply. n ACLU – against unlawful detentions without reason. n Grass-Roots Legal Groups such as the Brennan Center of Justice, and other groups who have filed habeas briefs on behalf of prisoners being held at Guantanamo Bay, Abu-Ghraib, or being transferred to other detention centers for the purpose of being shipped back to foreign legal authorities. Some of the detainees are U. S. citizens and would be entitled to the access and rights permitted under American law.

24 Solutions n Restoration of Habeas Corpus and Bring America’s Detention Center under the Rule of Law Habeas Corpus Restoration Act of 2007 (HR 267) National Defense Authorization Act of 2008 (HR 1585) contains a provision that requires POTUS to provide a report on the detainees held at Guantanamo that are classified as “enemy combatants”. American citizens should have the rights afforded to them under American law in the judicial system. Congress needs legislate to bring the global detention system under the rule of law. n Enact a Law that Regulates the Invocation of Executive Privilege n Strengthen the Inspector General System and Other Internal Checks and Balances

25 PROS & CONS n PROS n Due process of law is upheld and provides sense of fairness in treatment of detainees n Reciprocity – in the event American citizens are captured by foreign governments, the precedent for fair treatment has been set. n Restoration of global reputation as being fair and democratic n Allows equal participation by the Legislative and Judical Branches of Government n CONS n Slow process in introducing and passing legislation that will restore habeas corpus – meantime, Executive Branch can continue to pass signing statements or find other means to evade the legal/judiciary process. n American prisoners in foreign government prisons may be subjected to ill treatment in retaliation for how America has treated foreign prisoners being held in detention centers. n Global reputation is still tarnished n Solidifies government power in one branch of government.

26 SOURCES/REFERENCES n Huq, Aziz Z. “Twelve Steps to Restore Checks & Balances” – Brennan Center for New York University School of Law, 2008 n Jordan, Laura Jakes. “Mukasey Wastes No Time Before High Court”, U. S. News & World Report, March 25, 2008 n Savage, David G. “Supreme Court Hears War-on-Terrorism Cases”, March 26, 2008 n The Library of Congress Website n United States Constitution – Article III, §1 n U. S. Congress Website: and n Supreme Court Wikipedia Website: n Washington Post, “Secure Lawsuits”, March 6, 2008