Judical Review of Indefinate Detention Assessment

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The court pointed out that the reason next friend status is observed to occur almost exclusively among prisoner's relatives is because a family member typically decides to step in when the competence of the prisoner is in question. The Court also argued that this case was easily distinguished from Hamdi (2002) because Newman already had a preexisting relationship with Padilla.

The government also argued that the District Court of the Southern District of New York did not have jurisdiction, since the prisoner was currently housed in Charleston, South Carolina (Padilla ex rel. Newman v. Bush, 2002). The Court rejected this argument in addition to making five other decisions: (1) Secretary of Defense Rumsfeld was the proper respondent to the habeas petition, (2) the Court had jurisdiction over Rumsfeld, (3) the President is authorized to designate Padilla an enemy combatant (without judging its merits) and therefore detain him for the duration of hostilities, (4) Padilla has a right to counsel, and (5) denied the motion to transfer the case to South Carolina. The Court ordered the parties to discuss arrangements to grant counsel access to the prisoner and scheduled a preliminary habeas hearing for December 30, 2002.

The Reach of Executive War Powers.

In response to Hamdi's father's habeas petition the District Court granted the father next friend status and appointed public defender Dunham as counsel (Hamdi II, 2002). The argument put forward by the petitioners was that Hamdi deserved all the rights and protections afforded to anyone accused of committing a crime under the Fifth and Fourth Amendments. The District Court agreed and ordered the military to grant Dunham unmonitored access to Hamdi. The government appealed this decision to the 4th Circuit and obtained a stay on the order. The 4th Circuit further ordered the District Court to consider the government's evidence that Hamdi is an enemy combatant. The 4th Circuit's rationale for this decision was that the District Court ignored the possibility that granting access to Hamdi could harm National Security interests.

When the government finally presented its case for designating Hamdi an enemy combatant, along with a motion to dismiss the habeas petition, the District Court reacted strongly to the assertion that the designation 'enemy combatant' allows the government to detain anyone indefinitely on the government's say-so (Hamdi III, 2003). The District Court ordered the government to turn over all the evidence collected, including all statements made by Hamdi and Northern Alliance witnesses. In essence, the District Court was approaching this case as if it were a domestic criminal case with all the relevant protections for the accused.

When the order to produce was appealed, the 4th Circuit agreed with the government that the War Powers under Articles I and II required the courts to give considerable deference to the Commander in Chief during wartime (Hamdi III, 2003). In reaching this decision, the 4th Circuit held that (1) all detained American citizens have the right to judicial review, (2) the government has the right to detain captured enemy forces during hostilities to prevent them from returning to the battlefield, and (3) imposing the burden of litigation to assess the disposition of captured soldiers during wartime would interfere with war's prosecution. The petitioner's argument that Hamdi's detention is illegal under U.S. law and the Geneva Convention was also discarded. Instead, the 4th Circuit held that his detention was in fact legal after Congress authorized the President to attack Al Qaeda and the Taliban and that the Geneva Convention does not preclude detaining lawful or unlawful prisoners of war.

The 4th Circuit then dismissed the lower court's order to produce evidence to substantiate the enemy combatant designation for Hamdi (Hamdi III, 2003). In essence, the appellate court viewed the order as irresponsible and an intrusion into the war-making powers of the U.S. government's political branches. As to the enemy combatant status of Hamdi, the 4th Circuit held that such designations are the prerogative of the Executive and that absent evidence of abuse of power, Article III courts should not intervene. By reaching this decision, the 4th Circuit claimed to have given the writ of habeas corpus adequate attention; however, given the deference afforded the Commander in Chief during wartime the relief sought could not be granted.

The 2nd Circuit Court of Appeals heard arguments by the government to dismiss Padilla's writ for habeas corpus and to transfer the case to South Carolina (Padilla v. Rumsfeld, 2003).

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The 2nd Circuit rejected the claim that Newman could not be next friend for Padilla and found that Rumsfeld was the proper respondent. The Appellate Court then addressed the issue of whether the President's war powers as Commander in Chief gave him the authority to designate Padilla an enemy combatant and detain him indefinitely. Citing the U.S. Supreme Court's ruling in Youngstown Sheet & Tube Co. v. Sawyer (1952) which provides a test for determining the reach of the President's war powers domestically, the Circuit Court analyzed the legality of Padilla's status as an enemy combatant and his detention.

Under Youngstown (1952), the President's power is limited to that authorized by Congress or the Constitution (Padilla v. Rumsfeld, 2003). When Congress gives the President the power to act, executive power is at its maximum, but in its absence the President must rely on the power granted him by the Constitution. When the President and Congress disagree, then the President's power is reduced by the amount of Constitutional power that Congress chooses to bring against him. The 2nd Circuit Court held that since Padilla was an American citizen seized on American soil, the AUMF does not apply; therefore, the President does not have Congressional authorization to detain Padilla. In light of the Non-Detention Act and its relevance to both civilian and military prisons, according to the 2nd Circuit, Congress has explicitly limited the executive's power to detain American citizens. The resolution of any dispute between these two branches therefore rightfully falls within Article III courts.

Again citing Younstown (1952), the 2nd Circuit Court discussed the bright line between the President's power to wage war internationally and domestically, with the latter severely restricted and rightly under the control of Congress. One example cited by the 2nd Circuit is the ability to suspend the writ of habeas corpus in times of emergency, which can only be done by Congress. Another example discussed was the explicit prohibition of military intrusion into the lives of American citizens under the Third Amendment, except when authorized by law. Only Congress can pass a law, not the President. The government's contention that Hamdi v. Rumsfeld (2002, 2003) applies was also rejected by the 2nd Circuit because the two cases are very different, with Hamdi being captured in a foreign war zone. For this reason and others, the 2nd Circuit declared Padilla's detention unconstitutional and unlawful and ordered him released from military detention within thirty days.

The Final Word

Hamdi filed a successful writ of certiorari with the U.S. Supreme Court (Hamdi v. Rumsfeld, 2004). The Court did not address the definition of 'enemy combatant', only whether citizens of the United States can be detained under this designation. The Court agreed with the government's position that Hamdi's detention was authorized under AUMF and that Congress did not authorize a suspension of writ of habeas corpus. Justice O'Connor, writing for the majority, further delineated the rights of an American citizen under federal habeas review, including the right to proclaim their innocence and present evidence in support of this claim. In addition, the law allows the gathering of evidence through depositions, affidavits, and interviews.

Justice O'Connor then tore apart the government's argument that no further proceedings are needed, especially a fact-finding process (Hamdi v. Rumsfeld, 2004). From Justice O'Connor's perspective this would be true if the facts used to determine the enemy combatant status were not in dispute, but this is far from the case, especially since Hamdi has been held incommunicado. In addition, the government's claim that 'some evidence' unilaterally supplied by the respondents should be sufficient for the courts to recognize an enemy combatant designation was systematically torn apart. Citing Matthews v. Eldridge (1976), the Court outlined a balancing act between determining the impact that a possible erroneous rights deprivation will have on individual rights with the state's need to avoid the undue burden of litigating each dispute. The majority opinion chose to give substantial weight to individual rights, regardless of the reasons for the loss of liberty.

The Court, however, did not agree with the District Court's attitude that the habeas petition should elicit the type of judicial review appropriate for a domestic criminal case (Hamdi v. Rumsfeld, 2004). The court's wording of its decision reflected an effort to balance the interest of the two parties and a recognition that this right only applied to citizen-detainees......

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