Guilty until proven innocent: what's missing in the analysis of the Hamdi ruling

Humanist, Sept-Oct, 2004 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 Bush administration, 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 per son 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 backward 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, can not 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 to 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 had 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. Marri's attorneys, citing the Supreme Court decision, asked in early July Assistant Solicitor General David Salmons to see their client and were then told that, according to the motion, the government would still not allow Marri to see a lawyer.