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"Prisoners' Rights"--A commentary by Prof. Oona Hathaway


(This essay was originally published in the June 29, 2004, edition of Newsday.)

Prisoners' Rights
The Court puts the White House in its place
By Oona A. Hathaway, associate professor of law


The U.S. Supreme Court took a courageous and correct step yesterday. In three separate opinions that sent a single powerful message, it reigned in the Bush administration's claims of exclusive power over prisoners captured in the war on terror.

The administration had said that it, and only it, could decide if and when legal protections applied to such prisoners. The Supreme Court disagreed, reaffirming the fundamental principle that the courts have the power to say when the president has gone too far. In doing so, the court has helped to restore the basic governmental accountability that is essential to the protection of human rights both in the United States and abroad.

At first glance, those watching the court might presume that the prisoners who filed suit lost their cases, because the court did not decide whether those prisoners could continue to be detained or must go free. But what was at stake in these cases was much more than the fate of the few prisoners who filed them. At issue here was the power of the executive branch to unilaterally seize and indefinitely imprison those it designates "enemy combatants."

As with the famous Marbury v. Madison decision in 1803 that affirmed the right of the court to be the final arbiter of the Constitution, yesterday's decisions are victories not because of their immediate effects on the fate of the parties to the case, but because of the principle of court review that they uphold. In the face of presidential opposition and claims of executive privilege, the court has once again emphatically declared its power to "say what the law is."

This declaration was not just valuable but essential, for in each of the cases, the White House made unprecedented assertions of executive privilege. Two of the cases, Hamdi v. Rumsfeld and Padilla v. Rumsfeld, involve American citizens - one captured in Afghanistan, where he was suspected of fighting on behalf of the Taliban and the other caught in Chicago and suspected of involvement in a plot to set off a "dirty bomb" in the United States. Unilaterally labeled "enemy combatants" by the Bush administration, Yaser Hamdi and Jose Padilla are being held indefinitely at a naval brig in Charleston, S.C. They have never received any formal charges or any legal proceedings.

The remaining two cases, which were consolidated in a single court opinion, followed a similar pattern. In Rasul v. Bush and Odah v. United States, the administration claimed that it could indefinitely detain at Guantanamo Bay any foreign nationals captured abroad in connection with the war on terror. The administration again claimed that it was under no obligation to charge the prisoners or to provide them with any legal process, and it refused to allow domestic courts to review its treatment of prisoners on the base, declaring it outside their jurisdiction.

The court yesterday ensured that, henceforth, the American government would not be unaccountable for its actions, unequivocally holding that U.S. courts have the necessary power to consider challenges to the legality of the detention of foreign nationals held at Guantanamo Bay.

The court's resolution of the Hamdi and Padilla cases was less unequivocal but also firm in its effort to wrest power back from the executive branch. The fractured decision in Hamdi - no opinion won a majority of the justices - is far from an unqualified victory for the plaintiff. Yet all the justices rejected the claim that the prisoner in question could remain imprisoned at the unchecked discretion of the executive branch.

In Padilla, the court agreed with the administration that the case was initially filed in the wrong federal appeals court and, hence, ordered the case dismissed. Though a grave disappointment to those who view the detention as fundamentally wrong, including four dissenting justices in the case itself, the case can - and undoubtedly will - proceed in the correct court, where the court 's assertion of power to reign in the executive will likely play an important role.

All this means that whether the prisoners will be released or not - and on what terms - will be decided in time by the federal courts. While not the victory some had hoped, it is a significant one: The exact resolution of these cases is less important than the fact that the courts have the power to resolve them.

Laws designed to protect human rights are not self-enforcing. Nor can those who might benefit from skirting them be trusted to enforce them alone. The Bush administration claimed that in the war on terror it must be allowed to remain above the law. The Supreme Court has rightly brought the White House back to Earth.


Oona A. Hathaway is associate professor of law at Yale Law School. A contributor to the forthcoming volume, "Torture: A Collection," she is working on a book on the promise and limits of international law.