Human Rights Watch

Guilty Until Proven Innocent: What's Missing in the Analysis of the Hamdi Ruling

by Mel Lipman

The Supreme Court's recent decision in the Hamdi v. Rumsfeld case regarding the detention of an American citizen as an "enemy combatant," along with its sister cases, is being hailed positively as the most significant civil liberties opinion in a half century. While the importance is undeniable, many organizations and news outlets mischaracterize the Hamdi ruling as a landmark decision in defense of the Bill of Rights. It is not.

After reading so many headlines declaring victory for civil liberties and defeat for the administration of George W. Bush, one can't help wondering if anyone actually read the opinions. One simple demonstration of the lack of critical reporting on this case is that nearly every news source from National Public Radio to the Washington Times reported the vote on the ruling as 8-1 when in fact it was 6-3, as even a casual reading of the opinions confirms.

Key elements of the Hamdi decision are glaringly absent from favorable reviews. First, the Court ruled that lower courts which hear detainee cases must shift the focal point away from the merits of the case and limit the right to fair trial by focusing only on whether the person was correctly labeled an enemy combatant. Second, the trial the Court demands turns the U.S. legal system on its head by forcing the accused to prove his or her innocence. Third, the trial described in the ruling is stripped of its usual protections against hearsay, giving nearly all the cards to the executive branch attorneys.

In reworking an important part of the U.S. government's system of checks and balances, the power of the executive branch has been inappropriately expanded. Because of this our civil liberties would be better served if there had been no decision. This opinion is a step backwards that will excuse long-term imprisonments for U.S. citizens with no right to a fair trial addressing the merits of their cases.

Yes, it could have been worse. To the Court's credit the majority rightly recognized and ruled that the right to habeas corpus, absent suspension of that right by Congress, cannot be denied and that persons labeled as enemy combatants have the right to challenge, in front of a neutral decision maker, the government's evidence used to declare them as such.

Unfortunately, in the limited nature of this ruling, the majority justices overlooked the severity of the harm done when potentially innocent citizens can be imprisoned until the "end of hostilities," (perhaps indefinitely, considering the nature of the so-called war on terror) without a trial that truly addresses the merits of their alleged crimes.

Missing from public analysis of the decision is the way in which the Court established a new standard of "guilty until proven innocent." In an attempt to balance the competing interests of the individual and the government, the Court decided that the burden of proof would be on the defendant, who would have to show that the government's evidence was wrong or insufficient to declare him or her an enemy combatant. The Court also ruled that the government is granted lower standards for evidence, specifically allowing it to introduce hearsay with the presumption of truth. It is hard to imagine a more egregious departure from the long-celebrated legal cornerstone of "innocent until proven guilty."

The Court fails to clarify its position on the potential for long-term, even lifelong, detention. Indeed, in her opinion, Justice Sandra Day O'Connor acknowledges that given the broad nature of the "war on terror" it could become very difficult to determine when the conflict has ended, resulting in a prolonged detention once a person is recognized as an enemy combatant. But even the pseudo trial that the Court demands need not be held until a significant internment has already taken place. O'Connor neglects to remedy this problem and in fact leaves the door open for prolonged detainment by stating that the trial over whether or not the government is correct in its assertion that the accused is an enemy combatant is "only due when the determination is made to continue to hold those who have been seized" (emphasis added). It is dangerously unclear when the "continue to" threshold would be crossed.

Further, there is no indication in the opinion that existing domestic and international law regarding detentions will be followed. For one example, Congress' own USA PATRIOT Act allows detentions of aliens for no longer than seven days. In his dissent, Justice David Souter lends credence to this concern when he writes, "There is reason to question whether the United States is acting in accordance with the laws of war it claims to follow."

For another example, the Supreme Court ruling states that these detained "enemy combatants" may challenge their internment, but Ali Seleh Marri, a Qatar native who has been held for over a year at the Charleston Naval Consolidated Brig on charges of credit card and bank fraud, hasn't been allowed to see his attorney. Marri, who had originally been scheduled to go to trial last year, until his prosecutors dropped the charges, was then designated an enemy combatant by the government. So when Marri's attorneys, citing the Supreme Court decision, asked Assistant Solicitor General David Salmons in early July if they could see their client, they were told that the government would still disallow it. And in a federal court filing on July 30, 2004, the Justice Department said that prisoners being held at Guantanamo Bay, Cuba, who were trying to challenge their detentions by filing petitions, weren't allowed to see their attorneys because they are foreigners detained outside U.S. jurisdiction. Furthermore, on August 3, 2004, a federal judge refused to stop military hearings that were to decide if the Pentagon can continue to detain the prisoners at Guantanamo Bay. According to human rights lawyers, such military hearings can harm detainees' chances of gaining freedom through filing separate lawsuits in federal court.

Overall then, with this ruling the Court has damaged the constitutional right to a fair and speedy trial by creating separate standards, both for what the right to due process means and for what the trial must entail. Considering the nature of this decision, it is clear that when O'Connor writes, "We affirm today the fundamental nature of a citizen's right to be free from involuntary confinement," she overstates the Court's far more limited achievement.

While we're still hearing praise about this case from liberal quarters, the real story is that the Hamdi ruling has increased the power of the Executive, giving President Bush just shy of everything he wanted. Since September 11, 2001, we seem to be witnessing the sad crumbling of the U.S. system of checks and balances. First Congress abdicated responsibility by giving the president carte blanche to make war whenever and wherever he wishes and now the Supreme Court has relinquished its responsibility to protect individual liberties. Clearly, Monday, June 28, was a somber day for civil liberties, and one made even more dour by the fact that so few even noticed the setback.

The state of civil liberties in the United States is only worse as a result of this ruling. Before the decision, public concern was rising to a high point about the way the administration was improperly detaining U.S. citizens indefinitely. Now concern is lessened as the executive branch continues to do the same thing, pausing only to undertake the formalities of a trial rigged against the detainee.

Mel Lipman is a Nevada civil liberties attorney and president of the American Humanist Association. This is a slightly updated version of that which appeared on pages 42 and 43 of the September/October 2004 Humanist.

© 2004, the American Humanist Association