2004 June 28

“War Is Not a Blank Check for the President”: Supreme Court Rebukes Bush Administration


Hamdi v. Rumsfeld was one of a series of four major Supreme Court decisions in which the Supreme Court rejected key principles in the war against terrorism by the administration of President George W. Bush. The case is perhaps most famous for Justice Sandra Day O’Connor’s declaration that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” Yaser Esam Hamdi was an American citizen who was captured by the U.S. in Afghanistan and then held indefinitely as an “enemy combatant.” Hamdi’s father filed a habeas corpus petition challenging his son’s indefinite detention. The U.S. argued that as an enemy combatant Hamdi had no right of access to U.S. courts. The Supreme Court was deeply divided, but eight justices agreed that the government could not hold a U.S. citizen without due process of law. After the Supreme Court decision, the U.S. dropped all charges against Hamdi and deported him to Saudi Arabia.

Justice Sandra Day O’Connor: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens . . . 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.”

The other three important Supreme Court decisions on Bush’s War on Terror were Rasul v. Bush (June 28, 2004), in which the Court ruled that the federal courts did have jurisdiction to determine whether persons held at Guantanamo Bay were being wrongly detained; Hamdan v. Rumsfeld (June 29, 2006), in which the Court ruled that the military commissions established by President George W. Bush violated the Uniform Code of Military Justice and the Geneva Conventions; and Boumediene v. Bush (June 12, 2008), in which the Court ruled that the privilege of the writ of habeas corpus extended to foreign nationals being held by the U.S., and that they therefore had a right to challenge their detention in American courts.

The four decisions stand in contrast to the Supreme Court’s posture during World War II with regard to the evacuation and internment of the Japanese-Americans. In both Hirabayashi v. United States (June 21, 1943), involving a curfew, and Korematsu v. United States (December 18, 1944), involving the evacuation, the Court deferred to presidential wartime power and upheld the government’s program. Only in Ex parte Endo (December 18, 1944) did the Court rule that the government could not detain people it conceded were loyal to the U.S.

Read: Karen Greenberg, The Least Worst Place: How Guantanamo Became the World’s Most Notorious Prison (2009)

Learn more about President Bush and the detainees: Howard Ball, Bush, The Detainees, & the Constitution: The Battle Over Presidential Power in the War on Terror (2007)

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