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Prisoners and Courts By: Michael P. Tremoglie
FrontPageMagazine.com | Thursday, July 15, 2004


While mainstream media leftists are celebrating the Supreme Court’s ruling in Hamdi v. Rumsfeld, reporting that the poor, beleaguered terror suspects incarcerated at Guantanamo Bay will soon have access to United States Courts, they’re missing one crucial detail – the ruling says no such thing.

Both journalists and advocacy experts have interpreted the opinion as a function of their ideology.

This is an excerpt from the AP report of this case after the ruling was announced:

"The Supreme Court dealt a setback to the Bush administration's war against terrorism Monday, ruling that both U.S. citizens and foreign nationals seized as potential terrorists can challenge their treatment in U.S. courts." (Emphasis added.)

Mary Diebel, of Scripps Howard News Service, wrote: "Even though the 2001 terrorist strikes and anthrax scares hit close to home for the justices, the 2003-04 term will be remembered as the term the war on terror arrived at the court. The justices ruled in a trio of cases that the Constitution's due process guarantee gives citizens and foreigners the right to challenge the administration's detention of them as "enemy combatants" before a judge or other "neutral decision-maker." (Emphasis added.)

The problem with this reporting is it is not true. Indeed, the Scripps Howard version quoted a citation listed in the opinion - not the opinion itself.

The opinion syllabus stated: "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." (Emphasis added.)

Could that make the decisionmaker be a military tribunal? In short --- yes.

Justice Sandra Day O’Connor, who wrote the plurality opinion, stated the decisionmaker may be a military tribunal. Although she used the term "decisionmaker" several time,s she did not explicitly define it.

Justice Scalia, who dissented, referred to this absence of a definition in his opinion, writing, "the presiding officer may well be a 'neutral' military officer rather than judge and jury."

The idea that the Court has declared access to Article III courts is not true. In fact, the Court established several procedures that are not consistent with normal judicial practices. Hearsay evidence is permissible. The presumption of innocence is waived - it is the accused who has the burden of proof. None of these policies are part of the judicial system of the United States.

O’Connor’s plurality opinion stated, "We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker." She rejected the government’s contention that the interrogations of Hamdi in Afghanistan and Guantanamo was due process. She felt Hamdi was not allowed the opportunity to present evidence that he was not a combatant. How this was interpreted to mean that the Gitmo prisoners will be appearing in court soon is not certain.

However, Justice Scalia’s dissenting opinion was quite clear. He criticized the Court for creating a happy median between what the government wanted and what the anti-government contingent wanted. Scalia interpreted the plurality’s opinion very differently from the media. He wrote, "Having found a congressional authorization for detention of citizens where none clearly exists; and having discarded the categorical procedural protection of the Suspension Clause; the plurality then proceeds, under the guise of the Due Process Clause, to prescribe what procedural protections it thinks appropriate. It "weigh[s] the private interest...against the Government’s asserted interest...and—just as though writing a new Constitution—comes up with an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a "neutral" military officer rather than judge and jury."

Obviously, the Court did not provide carte blanche access to American courts. Unfortunately, the propagandists are claiming otherwise. This misinterpretation will result in a judicial miasma. Unscrupulous lawyers will file a parade of federal lawsuits – claiming these suits are authorized by the Supreme Court’s opinion.

If anything, the Court’s opinion is more akin to Article 5 of the Third Geneva Convention. This states, "Should any doubt arise as to whether persons …are (Prisoners of War), such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." These tribunals were established in Iraq and used to process prisoners.

Principled, nonaligned, scholars and jurists need to communicate the truth to the people before an already dysfunctional legal system becomes worse – and before this misinterpretation has a chance to harm American homeland security.


A former police officer, Michael P. Tremoglie recently published his first novel, A Sense of Duty. His work has appeared in the Philadelphia Inquirer, Philadelphia Daily News, Human Events, and the Pittsburgh Tribune-Review. He has a Master of Science degree from Saint Joseph's University, Philadelphia.


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