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And since the government might find it burdensome, or at least inconvenient, to present a powerful factual case justifying a detention, the Court's flexible due process standard "would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal [by the detainee] were provided." This is a remarkable concession to the government. In a normal criminal proceeding, a defendant enjoys a "presumption of innocence" that can be overcome only by evidence proving guilt "beyond a reasonable doubt." In a civil proceeding, the side that produces a "preponderance of the evidence," showing that its story is more likely than not to be true, wins. But in an enemy combatant hearing as outlined by O'Connor, the government enjoys a blanket presumption in its favor.
It would take an extraordinary effort for a detainee to gather the quantity and quality of evidence required to overcome such a presumption. The vast majority of prisoners would lack the wherewithal to gather the witnesses and documents needed. Hence the presumption becomes, practically speaking, conclusive. Where each side has difficulty presenting its case, the government wins by default.
Remarkably, the Court left open the possibility that the government might be allowed to proceed, using this amorphous and lax evidentiary standard, before a military tribunal rather than anything resembling a civilian court. And even where the government chose to proceed in a civilian court rather than a military tribunal, O'Connor wrote, that court "may accept affidavit evidence like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government's [evidence]." Given the presumption in favor of the government's evidence, satisfied by a document as imprecise and sketchy as the Mobbs declaration, such a hearing, even in a civilian court, would verge on point-lessness.
"Use All Necessary and Appropriate Force"
Any trial lawyer could tell you there is little practical difference between the government's proposed "some evidence" standard and the Supreme Court's standard. While the Court required that prisoners be allowed to challenge the government's hearsay declarations, it tipped the scales of justice by establishing a barely rebuttable presumption in the government's favor. Erroneously detained people in categories that O'Connor claims would be protected--"the errant tourist, embedded journalist, or local aid worker"--would face the dire possibility of being mistakenly held for the duration of a seemingly endless war.
Finally, one must not lose sight of the fact that the O'Connor opinion confirmed the government's position that a citizen can lawfully be declared an enemy combatant and held, without charge, for an as-yet-undefined and hence potentially unlimited period. O'Connor found support for this extraordinary exercise of power in the Authorization for the Use of Military Force (AUMF) that Congress passed after the September 11 attacks. The AUMF empowered the president to "use all necessary and appropriate force" against those who planned, carried out, or supported the attacks. The Court considered this authorization adequate to justify, by extension, the indefinite holding of "enemy combatants." Indeed, the Court was so solicitous of presidential power that it declined even to declare that specific congressional support was required. It concluded simply that even if such support were necessary, the AUMF would be sufficient.
Antonin Scalia penned a fiery dissent, joined by John Paul Stevens, from O'Connor's compromise. But he did not proceed from a realistic understanding that O'Connor's due process standard amounted to little more than smoke and mirrors. Rather, he approached the problem based on his literal assessment of the Constitution and what it requires. Sympathizing with the Court's attempt to balance "the competing demands of national security and our citizens' constitutional right to personal liberty," he concluded nonetheless that the government had no authority to detain citizens on American soil without due process of law--unless Congress suspended habeas corpus, as the Constitution allows in certain dire emergencies.
Without such a suspension, wrote Scalia, "a citizen held where the courts are open is entitled either to a criminal trial or to a judicial decree requiring his release." He derided O'Connor's compromise as "an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a 'neutral' military officer rather than judge and jury." In this instance, Scalia's literalism happened to coincide with the pragmatic knowledge and experience of trial lawyers.
Court Picking Plan
The third case decided by the Court, Rumsfeld v. Padilla, involved a habeas petitioner in a position somewhat similar to Hamdi's. Jose Padilla was also an American citizen whom the Bush administration claimed had a connection to Al Qaeda. Unlike Hamdi, however, he was arrested not on some foreign battleground but at Chicago's O'Hare International Airport after getting off a flight from Pakistan.
Initially Padilla was picked up and held on a "material witness" warrant, a remarkable legal device that allows the government to temporarily detain a witness on the assumption that his testimony is relevant to a criminal proceeding and that his future availability cannot otherwise be assured. Padilla was brought to New York, where his lawyer, Donna R. Newman, filed a motion in the Manhattan federal district court requesting that the material witness warrant be vacated. The government, apparently fearing an abrupt endgame when it came time to present its evidence to justify holding the "witness," changed Padilla's status from material witness to enemy combatant. The feds then spirited him from New York to the naval brig in Charleston, South Carolina. Conveniently, this brig is under the jurisdiction of the most staunchly government-friendly federal appeals court in the nation, the U.S. Court of Appeals for the 4th Circuit.
When Newman learned that her client had been moved to the 4th Circuit, she changed her motion attacking the material witness warrant into a petition for a writ of habeas corpus seeking his release. The district judge kept the case in New York because the government had moved Padilla after Newman filed the motion to dismiss the material witness warrant. Since it was the government's decision to bring Padilla to New York initially, the judge reasoned, it should have to stick with its original choice of forum.
The legal outcome in New York initially favored Padilla. The U.S. Court of Appeals for the 2nd Circuit ruled that he had to be charged or released from military custody, and that he could not be held incommunicado, indefinitely, without charge. But the Supreme Court, in a majority decision written by Chief Justice William Rehnquist and joined by four other justices, with Kennedy concurring separately, held that Padilla had filed his habeas petition in the wrong jurisdiction, and that he had to begin over in the district of his incarceration, namely South Carolina, located in the 4th Circuit. Because this decision forces alleged enemy combatants to file habeas corpus petitions in the federal judicial district in which they're held, the government can in effect select a friendly judicial venue by shipping prisoners off to brigs in the 4th Circuit. Since the Supreme Court has left the lower courts the task of deciding exactly what "due process" for alleged enemy combatants entails, the choice of venue becomes a crucial advantage for the government.
If Padilla's case had reached the Supreme Court on the merits of the underlying legal issue as to what kind of process he is entitled to, the outcome might have been more encouraging. In Hamdi the Court indicated that it might draw a distinction between an enemy combatant like Hamdi, who was an American citizen allegedly captured fighting American forces on a foreign battlefield, and Padilla, an American citizen arrested on American soil. O'Connor noted a Lincoln-era precedent, Ex parte Milligan, that declared unconstitutional the president's suspension of habeas corpus and the continued detention of an Indiana resident, Lamdin P. Milligan, who was arrested in his home and accused of collaborating with the Confederacy. Under that decision, O'Connor concluded, Milligan could not be detained by the military for the duration of the Civil War, "whether or not he was a citizen." But "had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different."
This distinction between those arrested abroad and those arrested on U.S. soil suggests that Padilla might eventually have been accorded more procedural rights than either Hamdi or the Guantanamo detainees. It hardly seems intuitive that the locale of your arrest should be such an important factor in determining the extent of your legal rights to contest your detention. Surely the government's claims about the difficulties of obtaining and arraying evidence amid the chaos and destruction of war, when dealing with someone allegedly captured on a foreign battlefield, can be dealt with on a case-by-case basis rather than by giving the government a blanket presumption. In most instances, you would think that the prisoner would have fewer resources than the government for obtaining access to evidence. In some instances, evidence might be easily available to the government. For the Court to give the government a blanket reprieve from obligations to obtain the best evidence fairly readily available, and to put excessive burdens on resourceless detainees, seems like something less than the process that is due.