Tuesday, September 21, 2004

Just hearings for detained "enemy combatants"

In Hamdi v Rumsfeld, 542 US 507 (28 June 2004) the Supreme Court grappled with the rights of a detained man, allegedly an "enemy combatant" in the face of his application for release. The Supreme Court analysed the problem as a conflict between "the private interest that will be affected by the official action" against the Government’s asserted interest, "including the function involved." It will be noted that the problem is thought of, not as a triangulation of interests, but as a conflict between two interests.
The plurality of the Court recognised,
"…as critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat."
And further,
"Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad… . 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."
On the other hand,
"… the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant."
The parties were left to devise an appropriate form of procedure. The plurality recognised that the tribunal could be military, and that it might require an onus on the accused, and that full disclosure of the Government’s evidence need not necessarily be made to the accused. Hearsay may be permitted, and even a brief summary based on hearsay may be sufficient for the Government to put the accused to disproof.
Ronald Dworkin has commented on the extra-ordinariness of the placing of the burden of proof on the accused, and on the difficulties that he may confront even if assisted by counsel: http://www.nybooks.com/articles/17293.
Clearly, in times of war, the law must be practical. A solution might be found in adopting, or adapting, the Continental system of pre-trial investigation involving the proces verbal and the dossier, and the trial system of intime conviction (when conviction raisonee is inappropriate). It is possible to have a respectable justice system that does not involve full disclosure, that is not averse to hearsay evidence, and that does not involve adversorial procedure in the sense that term is understood in the Anglo-American legal tradition. In the Continental system the judge must ask himself whether, as a matter of conscience and good faith, he is "personally convinced" of the truth of the prosecutor’s allegation. The difficulty is whether that state of mind can exist where the defence has not had full access to, or opportunity to challenge, the evidence presented by the prosecution.

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