Detainees.

• Author: Chemerinsky, Erwin
• Position: Wartime Security and Constitutional Liberty

It is an honor and a pleasure to be a part of this symposium and distinguished panel. I had the occasion to argue the very first case on behalf of the Guantanamo detainees, which was decided in February 2002, in the federal district court and then in the Ninth Circuit in July 2003. The case was called Coalition of Clergy v. Bush. (1) It was brought by a group of law professors, journalists and clergy as next-friends on behalf of the Guantanamo detainees. The district court ruled against us, largely based on Justice Jackson's opinion in Johnson v. Eisentrager, (2) that foreign nationals held in a foreign country do not have access to habeas corpus. (3) In the Ninth Circuit, the focus was whether we had standing under the habeas corpus statute, which allowed habeas petitions to be brought on behalf of another. (4) The argument focused on whether those in Guantanamo had access to the American courts. (5) I found this to be a very frustrating argument. When I stood up on rebuttal, I said to the judges: "It seems that there is one of two possibilities with regard to those in Guantanamo. One is that they have not brought lawsuits so far because they like being held in prison. The other possibility is that lawsuits are not being brought on their behalf because their families do not know where they are. Their families are in Afghanistan, so the families do not have the resources to hire American lawyers. The latter seems far more plausible than the former."

The Ninth Circuit ruled that we lacked standing, in large part because we could not show that those in Guantanamo lacked access to the American courts and needed a next-friend to represent them. (6) I think the Ninth Circuit's opinion in this case was typical of many courts that have handled issues regarding the Guantanamo detainees and other detainees: evidencing a tremendous insensitivity to the reality that these are human beings being held in prison without any semblance of due process.

I would like to make three points with the remainder of my remarks. First, I will argue that since September 11th, the Bush Administration is engaged in an effort to detain human beings without due process. Second, I will argue that the Supreme Court basically got it half right in its decisions in June. They recognized a right of access to the courts, (7) but did not go nearly far enough in protecting the need for due process for those being held. Third, I will talk about what remains, both in the courts and Congress.

With regard to my first point, we could start with the case of Jose Padilla, an American citizen who was apprehended at the Chicago Airport in May of 2002. (8) Although he has been in prison now for twenty nine months, he has not been charged with any crime. He has not been indicted. He has not been tried. He has not been convicted. The Bush Administration has taken the position that he can be held indefinitely as an enemy combatant. (9) The extent of the Bush Administration's position can be seen by reading the transcript of the oral argument in the case of Rumsfeld v. Padilla. (10) The question was whether Padilla is entitled to any form of a hearing. The Deputy Solicitor General, Paul Clement, said the only hearing that Padilla is entitled to is one in which he responds to the questions that are put to him by his interrogators at his interrogation. (11) The government is taking the position that no matter how long he is held, no matter how he is treated, he has no right of access to the courts. There is no stopping point to the government's argument here. By their analysis, Timothy McVeigh and Terry Nichols could have been held as enemy combatants and did not need to be tried. By their analysis, any drug dealer could be held as an enemy combatant as a part of the war on drugs. The government essentially claims that the President has the authority to suspend the Fourth Amendment, which requires arrest warrants issued by judges; the Fifth Amendment, which requires grand jury indictments by neutral grand juries; and the Sixth Amendment, which requires trial by jury and proof beyond a reasonable doubt in situations involving American citizens apprehended in the United States. Ambassador Prosper has...