The U.S. Supreme Court has set aside the case of an American terrorist suspect being held in a military prison, citing legal technicalities in a challenge to his detention.
In ruling on three cases today, the Court let stand, at least for now, the detention of the one accused terrorist with the best case against detention.
They ruled that foreign citizens captured on foreign soil and as illegal combatants not even entitled to protection under the Geneva Conventions must be given access to US Courts. The concept of illegal combatants is not something dreamt up by the Bush administration, btw, it is a concept inherent in and defined by the Geneva Conventions. Spies, saboteurs and most other non-uniformed combatants are considered illegal combatants and not entitled to its protection. Yet, apparently they are entitled to the protection of US Courts even though they are noncitizens captured in battle on foreign soil. These people don’t even have treaty claims to protection. Of course, the Court didn’t say what action lower courts had to take, merely that they were entitled to some sort of hearing.
The second, borderline, case involved a possible US citizen captured on foreign soil. I say possible citizen because he had apparently not been in the US since early childhood and claimed citizenship in a foreign nation. United States law does not allow for ‘dual citizenship’ and so far as has been reported, Hamdi did not carry a US passport. In any case, as a US citizen, he certainly had more claim to the US courts than the terrorists held at Guantanomo Bay, though arguing he is a citizen might be counterproductive for him since that makes him a traitor rather than an enemy who might be released after hostilities end. Still the Court has said he gets a lower court to hear his case.
But the case that the court really blew. A US citizen arrested on US soil. The government made the decision to arrest Jose Padilla after his return to the US, allowing him to come squarely and unarguably under the jurisidction of US Courts. Their complaint is that following normal rule of law would not allow them to both hold him and use him for intelligence. Put another way, they want an end run around the Fifth Amendment and/or the normal procedure in conspiracies. Normally, when prosectuors want information from someone you cut a deal. Sometimes that means one murderer walks. It’s not a perfect system, but it’s the American system. It’s how we do things. They want their cake and eat it, too, with Mr. Padilla. Understandably. But here in the one case where there is the most to argue with – the detention on US soil of a US citizen – the Court wasn’t willing to enter a ruling.