Cole, David, The Nation
On April 20, Solicitor General Ted Olson told the Supreme Court that the federal courts could not question the indefinite detention of "enemy combatants" held at Guantanamo Bay because as foreigners outside our borders, the detainees have no constitutional rights and no access to courts. A majority of the Justices seemed concerned that if federal courts have no jurisdiction, Guantanamo would be seen as a "lawless enclave," as John Gibbons, arguing for the detainees, put it. The Solicitor General, who opened his argument reminding the Court that "the United States is at war," seemed surprised at the prospect that the Court might actually rule against the government in the "war on terrorism."
When the government stands up on April 28 to defend its detentions of two US citizens--Yaser Hamdi, allegedly captured in Afghanistan, and Jose Padilla, arrested at O'Hare Airport--as enemy combatants, it won't argue that they have no constitutional rights. Citizens are indisputably protected by the Constitution. But if the government's view prevails, US citizens might as well have no rights, because the President will effectively have unilateral authority to hold them indefinitely without trial on his own say-so.
The Bush Administration initially contended that the courts are barred from hearing the claims even of US citizens held as "enemy combatants." After the most conservative federal court in the country, the US Court of Appeals for the Fourth Circuit, rejected that view, the Administration rethought its position; it now concedes that the courts may exercise review over the detention of citizen "enemy combatants" (but not foreigners). But the scope of review it argues for is so restricted as to be illusory.
According to the Administration, the courts may at most ask whether, solely on the basis of the government's submissions, the President had "some evidence" to label a person an enemy combatant. In Hamdi's and Padilla's cases, the government has relied entirely on a two-page affidavit from a mid-level Pentagon functionary, Michael Mobbs. Mobbs had no firsthand information and merely relayed the untested assertions of unidentified sources. In the government's view, the courts may not assess the reliability of Mobbs's assertions; Hamdi and Padilla have no right to participate in the review or even consult with their lawyers; and their lawyers may not offer any evidence to contradict Mobbs's contentions.
While the government's position is so obviously unsatisfactory that even former Administration stalwarts like Viet Dinh have backed away from it, these are not easy cases. …