Supreme Court Ends Term With Reaffirmation of Rule of Law During Times of National Crisis

June 29, 2004 12:00 am

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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.”

The ACLU’s full summary of the terms’ decisions is online at /node/

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