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Supreme Court Affirms Right to Detain Enemy Combatants

By Jim Garamone
American Forces Press Service

WASHINGTON, June 29, 2004 – In decisions handed down June 28, the Supreme Court strongly reaffirmed the president's ability to detain enemy combatants, including U.S. citizens, in the war on terror.

But a senior DoD official admitted that the department was "surprised" by other parts of the decisions.

In the case of Rasul v. Bush, the Supreme Court ruled that the 595 detainees at the Naval Base Guantanamo Bay, Cuba, facility can submit writs of habeas corpus that is, challenges to the legality of their detention to federal courts and that federal judges have jurisdiction. The case, brought by lawyers for 16 British, Australian and Kuwaiti detainees, said there must be appropriate judicial review of these cases.

The argument in the case hinged on the lease the United States has for the Guantanamo. The United States has exclusive jurisdiction and control over the naval base. That exclusive jurisdiction means that federal courts can treat the base just as if it were the sovereign territory of the United States.

DoD placed the detention center at the base, "because we were relying on previous Supreme Court precedent," said a senior defense official. The idea was to get the enemy combatants off the battlefield and to a place where they could be questioned. "It'll probably be likely that we're not going to move anybody else into Gitmo," said the official, "but I don't foresee a lot of change in how we're doing business in those theaters of operation."

The senior defense official said the decision, hinging on the lease, limits fallout from the decision to Cuba. He said the department believes the decision does not cover detainees held in other parts of the world.

Another case is Hamdi vs. Rumsfeld. Yaser Hamdi is an American captured while fighting for the Taliban against the United States in Afghanistan. U.S. officials moved Hamdi back to the United States and have been holding him in the Naval Consolidated Brig, Charleston, S.C. The court said that Hamdi's detention was allowable if the government proved he was an enemy combatant. But Hamdi has not been able to appear before a judge or some other "neutral decision maker." The court also said that Hamdi has the right to contest his detention.

DoD officials said that neutral decision maker could be an Article 5 Geneva Convention board, a judge or another type of board to be determined. An Article 5 board is one that determines a prisoner's status under the Geneva Convention.

Finally, in the case of Rumsfeld v. Padilla, the Supreme Court "punted," according to the senior DoD official. Jose Padilla, an al Qaeda operative, was arrested at Chicago's O'Hare Airport and accused of plotting to explode a radioactive "dirty" bomb. His lawyers filed habeas corpus petition in New York. The Supreme Court said that the lawyers must file in South Carolina, where he's being held.

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Naval Base Guantanamo Bay, Cuba


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