Counter Terrorism: Constitutional and Legislative Issues


Over the last few years, terrorism has been a major concern from a global perspective and has been taking roots year in year out. Terrorism has been very abundant internationally and has claimed many lives of the individuals. Some of the terrorists have been arrested and convicted while others are still missing. Al Qaeda has been conceived as one the dangerous terrorist group of the twentieth century.  Al Qaeda terrorist network, under the leadership of Osama Bin Laden, was involved in so many international terror attacks right from the years of 1990s. It carried out many worldwide bombings including in the US and many other nations. The US government has been in the forefront in the fight against terrorism and was able to bring down Bin Laden on May 2nd 2011 in Abbottabad, Pakistan. Until his death, the US government has been pursuing all the people believed to have been connected to Bin Laden. Several have been convicted and put behind bars. This paper is going to discuss two cases in which both culprits were believed to have had close with Osama. The cases to be featured will be Padilla v Rumsfeld and Hamdi v Rumsfeld. In both cases, Rumsfeld acted to serve as a plaintiff on the side of the US government.  He was by then serving the capacity of Secretary of Defense of the United States government.

Padilla v Rumsfeld

After his return from Pakistan in 2002, Jose Padilla, an American citizen was arrested by the American law execution authorities in O’Hare international Airport in Chicago, US. This the period when the US government was fighting against the Al Qaeda terrorist group and anyone suspected of having its connection was put behind detention doors for further investigation. Following his suspected connections with the al Qaeda terrorist’s network, Padilla was captured as a material witness. After government’s investigations, Padilla was later affirmed as an ‘enemy combat’ by the department of defense. This meant that, without access to any attorney or courts, Padilla could be imprisoned indefinitely. The federal bureau of investigation held and asserted that Padilla had ill intentions when he returned to the US in the sense that his objectives to carry out acts of terrorism. However, Donna Newman who had represented Padilla during the time he was detained as a material witness filed an appeal for habeas corpus on the behalf of the culprit. During this time, Padilla had been moved southern California in a military brig and despite this, the district court for the southern district of New York governed that Donna had standing to file an appeal. The president, under the department of defense, as found by the court had the power to detain the culprit as an enemy combat. This is because he is the commander in chief, and he is provided by the statutory authorization to employ military force as found under the congress’s authorization.  Padilla still held that his detention was unlawful and in order to challenge the detention, he decided to file a habeas corpus petition.

Lower Court

In a petition filed in the Southern District court, in New York, it was required that the government should provide formal charges and proof the basis in which the suspect is accused on. This is as per the fundamental requirements of due process. The court held that the government would only impose sanctions on the basis that it provided such proves and also such sanctions would only be imposed as per the prescription provided by the legislature. Amicus brief held that Padilla’s detention was unconstitutional in the sense that the assertion of the government lacked any process. In a court decision passed on 4th Dec of the year 2002, Padilla’s detention was not per se unlawful based on the district court’s ruling. However, it held that the issue as to whether the detention was lawful rested on the question whether the president had ‘some evidence to support his finding that Padilla was an enemy combatant.’ In addition, the court said that it would determine the habeas petition on the basis of the legal standard. It also required the counsel to consult with Padilla concerning the habeas petition. According to the government on appeal held on 18th December of 2003, the president did not have inherent powers to mandate Padilla’s detention by the military. Following such, the court granted the government the right to transfer Padilla to civilian authorities and ordered his discharge from the military detention. Padilla would thus serve as a material witness and would be held for criminal persecution, if deemed appropriate (Ducat, 2010).

Supreme Court’s position

A writ presented by the government was granted on 20th February,2004 by the US supreme court. Some lawyers from the public justice, the ACLU, and the NYCLU presented a brief amicus petition in regard to the second circuit’s ruling. All the above stepped in to support the circuit, and they held that the detention of Padilla by the military commission plus his transfer from civilian authorities violated the supremacy of the supremacy as provided under its guiding principles. In its ruling, the United States Supreme Court established that there was improper filing of Mr. Padilla’s cases. This is because he was held in south Carolina yet his case was filed in Southern District, in New York. As such, the court concluded by transferring the court to the district court in South Carolina on 28th day of February 2005. While there, the District court in south Carolina held that Padilla was entitled to his rights and was eligible for hearing court’s proceedings before a neutral tribunal. The hearings were meant to determine whether Padilla would be classified as being an ‘unlawful combatant.’ It also implied that Padilla would be set free if no hearing took place. On the 6th day of May, 2006, the US government filed a petition to the court of appeals insisting that the president had the powers and to detain Padilla, as an ‘enemy combatant.’ The plaintiff petitioned to the American Supreme Court.  It was on 17th November, 2005 that the US government had finally signposted that the detainee was held on conspiracy and terrorism charges (Terry, 2013). However, this was only meant to case from being taken to the Supreme Court. It had requested the suspect to be transferred to a civilian facility from the military brig where he had previously been detained. Based on the fourth circuit, it was within the mandate of the Supreme Court to determine the fate of Padilla regarding his transfer. Government’s request was granted on 4th January in 2006 but declined Padilla’s appeal on 3rd April of 2006.

Hamdi v. Rumsfeld

This took place in Guantanamo Bay, and it is a habeas corpus appeal whereby Yaser Hamdi challenged the authority and policy of military commissions. Yaser Hamdi was an American national and had been doing relief work in Afghanistan during the period of his arrest. It was during the periods of hostilities of the year 2001 that Yaser Hamdan was arrested in Afghanistan. He was allegedly involved in a fight with the Taliban during the time of arrest. He was earlier arrested by the Afghan security who later handed him over to the American military. This took place in the year 2001. He tried to defend himself insisting that he was only doing relief work and was only caught up in a round up. However, the American military dismissed the plea insisting that he was a Taliban and was fighting against the US. He was later taken to a Californian military brig. It was after this that the American security discovered Hamdi’s identity, who was an American citizen. He was put in the brig for a period of six months by the US government with the latter asserting that it had powers to detain him indefinitely as he was considered to be an enemy combatant.  He was put under detention as a material witness and until the year 2004 when the military commission was given a mandate by President George Walker Bush to try Hamdi. During all this period, Hamdi was deprived of his rights and as such could not have access to the court or even a lawyer. It was then that Hamdi filed his habeas corpus appeal, in which he claimed that the military commission did not have authority to put him under a trial holding that the authority lacked congressional act that would authorize the authorities to carry out such an action. In addition and by quoting the Common Article III of the Geneva Conventions and the Uniform Code of Military Justice, both Lt. Cammander Charles Swift and Professor Neal Katyal, who were Hamdi’s counsels stressed that the military commissions were not lawful. They held this in regard to the substantive and procedural legal point of view as provided by the aforementioned legal codes. His father had earlier filed petitions trying to determine whether his son’s detention was lawful, but all had been dismissed (Hol, Vervaele & Rijksuniversiteit te Utrecht, 2005).

Lower Courts

Following the habeas corpus petition filed by Hamdi, the US District Court, through Judge James Robertson granted the petition. The court argued that Hamdi was an enemy combat and not a prisoner of war and as such was not eligible to access federal courts. In addition, according to the government’s reasoning Geneva conventions did not apply in this case. The government pointed out that the Geneva conventions were only meant to address wars that were across international borders, but did not apply in cases that involved conflicts against terrorists.  However, according to Judge James Robertson, the conventions were applicable. He asserted that the ‘conflicts are not triggered by what a specific faction a combatant is linked with, but rather a place of conflict.’ He further and importantly found that there existed no documented evidence that the culprit was an enemy combat and not a prisoner of war and as such nothing would prevent him to fall under the category provisions of the Geneva conventions. The District court held that ‘the president is not a tribunal,’ and as such did not have a mandate to rule over cases. Consequently, this led to the dismissal that al Qaeda suspects were not prisoners of war and as such it dismissed the position of the government.

Further, the district court pointed out that the military commissions were not consistent with and went contrary to the Uniform Code of Military Justice in the sense that the military commissions restricted Hamdan from accessing the evidence presented against him. The court thus ordered that ‘unless and until a competent tribunal determines that Hamdan is not entitled to POW status, he may be tried for the offences……only by court-martial under the UCMJ.’ The court remarked that the suspect was charged with a plot to commit acts of terror (Terry, 2013). Further, the court commission found the Hamdan’s trial before the commission as being unlawful for restricting Hamdi from proceedings and held that the situation would only be reversed if amendments were done on the military commissions.

Supreme Court

Following the decisions made by the lower court, Hamdi filed a writ challenging its decision and citing out that his detention was not lawful. There were many challenges facing the ‘enemy combatant’ and as such a review tribunal stepped in to address the shortcomings. After review, the tribunal established that Hamdi appropriately fell under the category of ‘enemy combatant.’ It thus held that it properly right to try Hamdi before the special commission. However, Hamdi was dissatisfied with the decision and as such filed another petition suit to federal court in which he argued that his scheduled commission assumed some of his rights and hence was not lawful. His petition was granted by the lower court but rejected by the District court. Following, the conflict, Hamdi filed yet another petition to the Supreme Court which reversed the decision of the lower court on 29th June of 2006.  Justice John Paul Stevens, of the US Supreme Court wrote a 5-3 decision in which he found Bush administration to be failing and violating the rights of suspects as provided in both the code of military justice and the Geneva conventions.

It first ruled that it was within the jurisdiction of the Supreme Court and within its powers to review the case that was facing Hamdi. It insisted that the Detainee Treatment Act of 2005 did not limit the powers of the Supreme Court from reviewing habeas corpus appeals presented by ‘enemy combatant.’ Further, the court established that the president was not authorized by the congress to form special military commissions. He had no mandate of forming such commissions especially those that that diverged from other tribunal systems and courts-martial that fall under the provisions of the UCMJ and any other law deemed applicable. Additionally, the Supreme Court also held that the commission of Bush administration was violating the rules provided by the UCMJ and the Geneva conventions.  The United States is bound a signatory of the Geneva conventions that prohibits aspects of passing judgments and executing suspects without a previous reliable pronounced judgement against such suspects by a constituted court. Following such, the Supreme Court held that  ‘The Court argued that it was immaterial that the terrorist group Al Qaeda was not a signatory because the Convention still applied to individuals, like Hamdi. Hamdi was captured in the context of “international conflicts’ and in which Afghanistan fell under the member nations as provided by the convention (Elsea, 2010). The Supreme Court’s stand was that the military commissions under Bush’s administration were in violation of the Geneva conventions and UCJM’s provisions in both dramatic and specific ways. First, The military commissions restricted the discussion of evidence between a defendant and his attorney. Secondly, the provisions of the commissions were such that the defendant could not appeal to US court and as such was deprived of his right. Thirdly, the commissions restricted both the defendant’s attorney and the defendant from inspecting the substantiation brought against the defendant. Finally, any evidence containing ‘probative value’ was subject to admission to include evidence such as ‘unsworn testimony.’ As such, the Supreme Court found the awaiting Hamdi’s military commission trial as being lacking and unlawful because it went against and violated both the Uniform Code of Military Justice and Geneva conventions (Ackerman, 2006).

Similarities between the two cases

In both cases, the US government is acting as the plaintiff linking the defendants to the al Qaeda terrorist network that was under the leadership of Osama Bin Laden, eliminated on May 2, 2011 in Pakistan. The defendants are held in military brigs in US territories. Both defendants are first tried in the low courts prior to the later trials that take place in the supreme courts. The defendants in both cases have been detained under the same crime class ‘enemy combatant.’ They are arrested because they intend to facilitate the evil doings by the al Qaida group. They suffer injustices inflicted by the US government through the president who assumes mandate to detain the defendant in both cases, in military brigs. The US president, without constitutional backings, forms military commissions that aim at trying the defendants in both cases. This aspect of the president acting outside the law is repeatedly evident in both cases’ supreme ruling. The District Court in both cases has indicated that the president has no authority to form commissions that would put the defendants to trial. In fact, at one point a judge says ‘the president is not a tribunal.’ As such, he is also under the law implying that he has no mandate to order the detention of the defendants in the military brig, but rather they should have been detained in civilian facilities. Both of the defendants have been detained as ‘enemy combatants.’ As such they have been denied their rights as provided in both the Uniform Code of Military Justice and Geneva conventions. As such the defendants have been deprived of their rights to hear on their courts proceedings.

Both defendants have been classified as being ‘enemy combatants’ in spite of the fact that there is no reliable and adequate evidence previously obtained to affirm that the suspects are affiliates of the al Qaeda group. This implies that the rights of the two defendants have been violated and hence their detention becomes unlawful. Finally, both cases take place in the US territories and the main aim behind their pursuit is to bring down the al Qaeda group and if possible eliminate its leader. It is believed that both defendants would give reliable information that would assist in cracking down Osama Bin Laden. In both cases, the Supreme Court was the high ranking court and had a mandate to give the final verdict. To some extent the Supreme Court favored the plaintiff’s side in both cases. For instance, the court granted a petition presented by the government while at same time declining to another request that was presented by Padilla. From the Hamdi’s case, the Supreme Court held that the president was granted all the ‘powers and mandate’ to fight terrorism. As such, he had the authority to detain the defendant prior to the provision of adequate evidence from a federal court.

Differences between the two cases

The verdicts given by the United States Supreme Court in regard to the cases were different. For instance, the Supreme Court in the United States concluded the Hamdi v Rumsfeld to favor the defendant’s side. It held that the arrest violated the due process, and hence Hamdi was detained unlawfully. It held that the government’s decision to detain Hamdi was not respecting the legal rights of the citizens as provided in the due process. In addition, the Supreme Court found the American government denied the defendant his latent rights that were provided by the Due Process Clause. For the second case, the United States Supreme Court acted to favor plaintiff’s side. This is evident from the fact that the government request was granted. On the other hand, the request from the defendant side was declined.

Evaluation of the cases

The Supreme Court in the United States is a high ranking institution on matters relating to legal affairs. For instance, from the Pedilla’s case, the justice held that the Supreme Court had the full mandate and control to determine on the fate of the defendant after the case was referred from the lower court. In both cases, the Supreme Court has reversed the decisions of the district courts implying that it has the powers and authority to evoke the decisions made by courts of lower levels. Before a case can be referred to the Supreme Court, and then such case will first be determined by the courts ranking below the Supreme Court, example being the cases discussed above. The Supreme Court also gave the final verdicts which in both cases that were not subject to any appeal. Even the government itself was under the decisions of the Supreme Court, and that is why it could not question the final ruling given by the court. The government was found to violate the legal rights in Hamdi’s case and hence the court acted in the favor of the defendant. The two cases also indicate that the president has no mandate to legislate laws, but this responsibility lies in the hands of the legislature.

From Pedilla’s case, the district court held that the president was not a tribunal and as such had not authority of determining which brig a suspect should be put into. It is the responsibility of the congress to make laws and as such the president has no authority of forming a commission that would put the defendants on trial. As such the president was acting far beyond his roles by subjecting both Padilla and Hamdi to the ‘tortures’ of military brigs. The court authorities have shown discrimination and have subjected the detainees in harsh conditions denying them their legal rights. For instance, in the case of Hamdi, he is not given a chance to access either a lawyer or even the court itself. The court in this case had an obligation of protecting Hamdi, who was inflicted to the situation by the executive arm of the government. The court was required to determine whether the executive had the mandate of unilaterally declaring suspects as being ‘enemy combats’ and whether Hamdi was subject to rights of having his case being listened to by a neutral decision maker.

Effects on the judicial system and individual civil rights

Both cases have had great impacts on the judicial system and the human, civil rights. To begin with, after the verdicts were issued regarding the two cases, it was clear and evident that the court was the supreme authority in regard to law enforcement. It is the responsibility of the judicial system to enforce law and order and to ensure that the other arms of the government are abiding by those laws and orders. Prior to the cases, the president had assumed some of the laws governing United States by going ahead and forming military commissions that would serve during the trial of the defendants. However, the court came in and solved the issue and cleared the situation. To date, the powers of the judicial system, as the law enforcement body, have been upheld in the United States. The cases called for clear articulation of the law so that there was a better understanding of the difference in responsibilities between the judiciary and the executive arm of the government (Neubauer, 2011). During the two cases, both the lower courts and the supreme courts criticized the acts of the government and required amendments to be done on how cases were conducted and the role of the executive in the judicial system, if any. This has enabled the judicial system fully to enjoy its rights of executing the law with much interference from the executive arm of the government.

Effects on individual civil rights

The cases were very crucial and played great roles in regard to human rights. During separate rulings on both cases, the courts recognized human torture that was inflicted on the lives of the defendants. The US government had acted against some of these legal civil rights by violating the due process as well as violating the Geneva conventions and the Uniform Code of Military Justice. It is upon the realization of this that some of the laws have been formulated in order to protect the rights of the citizens, including both free and detained people. Formation of such acts has benefited the citizens in a positive way in the sense that suspects and detainees have been able to enjoy their rights even while in the brigs. Communication between defendants and their counsels has now been made easier and as such defendants can discuss on issues relating to the evidence brought against them (Fleury-Steiner, 2005). As such, it can be said that the two cases set the path for detainees and suspect can now enjoy their rights of following court’s proceedings regarding individual defendant cases. The judges have always respected the rights of the suspects and the detainees.


From the above discussion, it is evident that the Supreme Court in the United States of America assumes the supreme powers  and as such, it is the is the most powerful authority on issues relating to law. Some of the detainees have suffered humiliation and human rights’ deprival behind the ‘detention door.’ Governments have inappropriately used their powers and have subjected suspects to afflictions and environment of torture. At times petitions from defendants have been declined in favor of the government, which has acted beyond its roles. For instance, from the above cases, it is evident that the two defendants were deprived of their rights in several occasions. The government, through the president’s bush administration, had passed laws that were not backed by the constitution and as such violated human rights. The Geneva conventions and the Uniform Code of Military Justice and Geneva conventions were also violated in the sense that the government just framed the suspects as being ‘enemy combatants’ and not prisoners of war. However, the both cases and their final verdicts have had a positive impact on the judicial system and the general human, civil rights. The US government had set a mission to pursue the operations of the al Qaeda terrorist group and as such it is believed to have arrested and detained all those suspected to have been linked with the group. It is because of this that both Padilla and Hamdi are detained in a military brig in spite of the fact the plaintiff did not present adequate evidence showing that the two were actually linked to the group.