Rights for All

Civil liberties with Rasul, Hamdi, and Padilla


I'll leave it to the smart boys with the courtly expertise over at The Volokh Conspiracy and Overlawyered to suss out the legal details in full, but there seems little doubt that, overall, the recent Supreme Court rulings in three War on Terrorism cases (Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla) and two Miranda rights cases (Missouri v. Seibert and U.S. v. Patane) are good for civil liberties. Or, more precisely, the Court has firmly restated some key American principles about due process and justice for all. Especially in the wake of revelations regarding abuse at Abu Ghraib prison and the use of torture and other disturbing forms of coercion in fighting terrorism, such principles need to be championed more than ever.

We can be sure that the court rulings are good for civil liberties for at least two reasons. The first is that civil liberties groups have generally applauded the decisions. As the director of the Liberty and Security Initiative of the Constitution Project, Joseph N. Onek, told The Washington Post, "The Hamdi decision was better than the human rights and civil liberties groups asked for." A second, and perhaps even more convincing reason was the reaction of OpinionJournal's Best of the Web, which seems never to have met an Arab or Muslim it didn't want to detain, at least for a little while. In "ruling that terrorists and Taliban held at Guantanamo Bay, Cuba, have the right to sue in U.S. courts," sniffed BOTW, the "U.S. Supreme Court handed Osama bin Laden a victory this morning."

As with any high court ruling, the long-term meaning of these decisions is anybody's guess and none of the decisions is without problems or contradictions. What's more interesting are the comments these cases elicited from various justices, whether in the majority or in dissent. Taken together, those statements help to remind Americans—and the world—what we're supposedly fighting for in Iraq: Liberal values such as freedom, the rule of law, and due process.

In Hamdi, the Supremes clarified that the president does in fact have the legal right to classify a U.S. citizen as an enemy combatant. However, they further ruled that citizens jailed under such a designation can contest it before some sort of judicial body (exactly what sort is unclear; the majority left that to lower courts to figure out). In a plurality opinion, Sandra Day O'Connor noted that the president may be authorized during a "particular conflict" to hold "citizen-detainees." More important, she wrote, "It is equally vital that [we]…not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain mooments that our Nation's comittment to due process is most severely tested; and it is in those times we must preserve our commitment at home to the principles for which we fight abroad." Given that O'Connor pronounced shortly after 9/11 that, "We're likely to experience more restrictions on personal freedom than has ever been the case in this country," that's an especially heartening sentiment.

As the Post summarizes it, in Rasul, the Court held that "U.S. courts have jurisdiction to consider challenges to the legality of detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay, Cuba." In other words, a majority shot down the Bush administration argument that it could keep Gitmo prisoners locked up indefinitely without charging them simply because they were not citizens or because they are, in the words of John Paul Stevens, in "a territory over which the United States exercises plenary and exclusive jurisdiction, but not 'ultimate sovereignty.'" Rebutting Antonin Scalia's dissent that the Guantanamo Bay prisoners are not in the "territorial jurisdiction of any federal district court" and that "should be the end of this case," Stevens notes that the Bush administration concedes "that the habeas corpus statute would create federal-court jurisdiction over the claims of an American citizen held at the base." Since that statute "draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee's citizenship."

One hears in such a ruling an echo of Abraham Lincoln's famous 1855 letter to his friend Joshua Speed, in which the future president lays out a necessarily inclusive understanding of civil liberties and human rights. "We begin by declaring that 'all men are created equal,'" wrote Lincoln, who was then fretting over the rise of the anti-immigrant, Catholic-bashing, white-supremacist Know-Nothing Party. "We now practically read it, 'All men are created equal except negroes.' When the Know-Nothings get control, it will read, 'All men are created equal, except negroes, and foreigners, and catholics.'" (Emphasis in original). Lincoln's basic point—that we cannot have different rights for minorities without eventually undermining rights for all—remains true today.

On one level, the court simply punted in Rumsfeld v. Padilla, the case involving the alleged "dirty bomber" of Chicago, ruling that the defendant's lawyer filed his habeas petition in the wrong court (Padilla's lawyer filed it in the Southern District of New York, while his client is being held in South Carolina). However, given the day's other rulings, it seems clear that the court has little patience for indefinite incarceration or other law enforcement actions that stack the deck against defendants.

Indeed, in Missouri v. Seibert, the court railed against "a police strategy adapted to undermine the Miranda warnings" to which all suspects are entitled. Patrice Seibert was questioned by police about a murder and confessed before being read her rights. The cops then requestioned her and elicited a second, "legal" confession that was used to convict her.

In the original case—overturned by the Missouri Supreme Court and appealed by the state to the Supremes—the detective who elicited the confession testified that he had been trained to question before and after giving Miranda warnings, a practice known as "interrogating outside Miranda." In his opinion, David Souter noted that "the reason that question-first is catching on is as obvious as its manifest purpose, which is to get a confession the suspect would not make if he understood his rights at the outset." (The court's message on Miranda rights is hardly crystal clear. As the Post noted, at the same time the court upheld Miranda warnings in Missouri v. Seibert, it also, in U.S. v. Patane, held that physical evidence "gathered because of a suspect's statement made without a Miranda warning does not have to be excluded from a case.)

If the Abu Ghraib abuse scandal undermined confidence here and abroad that Americans practice what they preach when it comes to treatment of prisoners, these Supreme Court rulings go at least part of the way toward changing that perception.