More on the detention cases

JB

(1) Institutionally speaking, the Court is reasserting its authority in the face of an Administration that repeatedly said it was irrelevant. Generally speaking, this is not a good thing to tell courts. If you tell courts they have no jurisdiction to oversee Executive misbehavior, they will strain to find that they have the formal ability to do so, even if they don't exercise it in practice.

(2) The plurality opinion in Hamdi is clearly a pragmatic compromise. Justice O'Connor strains to find Congressional authorization for detaining enemy combatants (Justice Souter's concurrence explains why the argument is strained), so that she can then hold that some process is due-- essentially the right to be heard and present your own evidence to prove your own innocence and the right to rebut assertions from the state. Hamdi also has a right to an attorney on remand, but the plurality stops short of saying that enemy combatants always have a right to an attorney. In dicta, O'Connor states that the Executive may provide due process through military tribunals immediately after a person is captured, or, in a subsequent habeas proceedings in which the burden is on the accused to show that he or she is not an enemy combatant. This is unnecessary to the decision of the case but it's clearly advice to lower courts. The advice is worrisome precisely because it's unnecessary.

(3) The plurality dodges the question of whether the Executive can hold detainees forever. It insists that as prisoners of war detainees must be released when hostilities cease, and says that as of yet, the war in Afghanistan has not ended. What about the war against Al Qaeda? The Court has nothing to say on this point.

(4) Everyone on the Court categorically rejects the idea that the Congressional authorization for the use of force following 9/11 suspended the writ of habeas corpus.

(5) Props to my man Nino, who I regularly make fun of in these pages. Scalia, joined by Stevens, takes a hard line against the Administration. Either you treat U.S. citizens as criminal suspects, and charge them with the various federal crimes against aiding the enemy, or else you ask Congress to suspend the writ of habeas corpus and create special procedures. Scalia likes bright line rules, and so he draws them. His opinion does not apply to aliens, although if a resident alien is accused of aiding the enemy, Scalia does not fully explain why the Bill of Rights shouldn't apply. Scalia makes fun of the plurality's use of the balancing test of Matthews v. Eldridge-- a pension benefits case-- to devise its minimum rules of Due Process. His point is that the Supreme Court is doing what Congress should have done: had the guts to suspend the writ and impose its own rules. If Congress isn't willing to do that, the Court shouldn't step in and play "Mr. Fix-It" in Scalia's words. Although I don't agree with Scalia's either-or vision of how to deal with this problem, I have to say that he comes out strongly for protecting the rights of American citizens against Executive overreaching, something that he has been less eager to protect in other contexts.

(6) Clarence Thomas shows, once again, that he has no conception of what constitutional freedom means. Thomas swallows the Administration's strongest claims hook line and sinker. If the Executive determines that an American citizen is an enemy combatant, that is all the process that is due. Courts have nothing to say. This is an outrageous position for a Justice who purports to defend the American Constitution. Thomas's opinion shows how easily the theory of the "Unitary Executive" so much beloved by legal conservatives can be turned into a justification for authoritarianism. Because the Executive needs to be energetic, act in secrecy, and with dispatch, power to make decisions about war and foreign affairs must rest in a single hand. Because it must rest in a single hand, there can be no oversight by the judiciary. "Judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive." That means that the Executive can simply round up whoever it likes, declare them an enemy combatant, and hold them indefinitely. Guaranteeing rights to be heard, present evidence, and consult with counsel will interfere with the ability of the Executive to interrogate abuse and torture detainees. Although Thomas is often praised for being independent-minded, when it comes to assertions of executive power-- and particularly executive power to mistreat prisoners-- he is the most syncophantic of the Justices. He has never seen an arbitrary executive action he didn't like. There is an authoritarian strain in his opinions that is truly frightening.

(7) The Padilla case turned on the question whether Padilla should bring suit in New York or in South Carolina. Now that he must bring suit in South Carolina, his constitutional claims will be subjected to the tender mercies of the Fourth Circuit. This leaves Hamdi as the major case in this area. And Hamdi is written to avoid addressing some of the most difficult issues. It was always clear that Padilla, who was arrested at O'Hare airport, presented a tougher case for the Administration than Hamdi.

(8) Rasul (the Guantanamo Case) expands habeas jurisdiction overseas on technical grounds. It does not reach any of the important constitutional issues.

(9) In essence, the Court has said in these cases: don't tell us that we are irrelevant. The flip side of that demand is that if the Administration now goes through the motions of justifying its decisions before a court, courts are much more likely to let it do what it likes. In that sense, the decisions in Hamdi and Rasul cannot be understood to be complete victories for civil liberties. But they are better than the alternatives.