Monday, June 28, 2004

More on the detention cases


Now that I've had a chance to read the Hamdi, Padilla, and Rasul cases, a few thoughts:

(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.



I wonder if you have looked at Richard Samp's chat over on ( He is billed on the front page as a "legal expert" but is presenting a very conservative spin on the decisions.

For example, he repeatedly says the government never opposed a habeas hearing in Hamdi, but only at the end says that it should have been (and maybe still is?) ok for the government's evidence to be irrebuttable.

Anyway, I was mostly curious if you think this shows poor judgment by the host of the chat, the chatter, both or neither, because I think this spin would be understandable if it was on a WLF blog, but it would be very confusing to the average nonlegal reader who came across it on the post's website (although maybe they thought they were being "fair and balanced" by also having a chat with an amicus on the other side as well?)

"He [Thomas] has never seen an arbitrary executive action he didn't like."

Well, Thomas did join the opinion in Clinton v. Jones permitting that lawsuit to proceed.

Can someone tell me if the unitary-executive crowd really believes that the executive's power to wage war trumps everything else? I.e., what would a proponent of Justice Thomas's view say, in good faith, if the administration started rounding up Supreme Court members and detaining them without counsel on the grounds of a declaration that said that they were conspiring with or aiding and abetting al Qaeda? Or if the administration shut down newspapers who it viewed as hindering the war effort?

I mean, there must be some response to this other than "administration wins," right? But, on a theoretical level, what is it? What distinguishes these scenarios from the Hamdi or Padilla cases?

Regarding Justice Thomas and his dissent. Thomas has seen executive power he does not like , it came during the Clinton Administration. His jurisprudence is far more flawed than just in a constitutional sense. It is flawed by his partisan outlook. Not sense Justice McReynolds has the court seen a more bigoted, intolerant fool.

Regarding Thomas: Way to go, posters, by mentioning Justice McReynolds in a feeble attempt to appear to know what you're talking about.

Alas, you do not. And, sadly, neither does Prof. Balkin. For, while Justice Thomas has emphatically taken the side of executive power in some cases, this position is certainly not uniform. Indeed, some authoritarians would argue that Justice Thomas's streak of LIBERTARIANISM in his opinions is disturbing. To wit: Justice Thomas has signaled that he would vote to constitutionally bar all police checkpoints that indiscriminately stop drivers who are not suspected of wrongdoing. See his concurrence in Indianapolis v. Edmonds 531 U.S. 32 (2000). Is that authoritarian? How about his view (now shared by a majority of justices) that juries -- and only juries, not judges, prosecutors, and legislatures -- may find facts that determine the length of a criminal defendants' sentence. See his concurrence in Apprendi v. New Jersey (2000). Authoritarian? Is his uniquely cramped view of the scope of Congressional power under the 10th Amendment authoritarian? See his concurrence in Printz v. Unites States (1997). Or (and this may be over some of your heads) how about his leadership in junking the Court's mandatory deference to certain agency interpretations and actions? Christensen v. Harris County (2000). Or how about the simple fact that, in his tenure on the Court, Justice Thomas has (along with Justice Kenendy) been the leading defender of free speech on the Court -- witness his decisive vote in today's Ashcroft v. ACLU case. More authoritarianism?

If anything, Justice Thomas is highly skeptical that judges alone are vested with the power -- and, indeed, the competence -- to defend our rights and privileges. In Justice Thomas's admitedly 19th Century view, our freedom is guaranteed by a constitutional limitation of federal power, robust federalism, and a judiciary just active enough to set bright line rules and let the political powers compete on a shrunken playing field. I strongly disagreed with Justice Thomas's opinion in the Hamdi case (I think all citizens should get their day in court); but what is so authoritarian in believing that the President -- not just the courts -- is constitutionally permitted to provide due process in a time of war? After all, the courts will certainly defer to the government when the detainees finally get their "day in court" because courts know they're incompetent to take into account the national security implications of their actions. Thomas would head off this fiction of judicial due process by simply cutting to the quick and letting the President make the necessary security assessment ex ante. This is wrong, I think. But it is plausible, and certainly, in a time of war, not unthinkable.

Commenters like Prof. Balkin are so routinely wrong about Justice Thomas that I have to wonder where the prejudice comes from. The Hill hearings? His unapologetic principles? Maybe his race? The facts speak for themselves. And Thomas-bashers have a lot of explaining to do.

Terrific post. What puzzles me is that the DOJ thought that this strategy of denying any federal oversight power would work--in light of City of Boerne etc. etc, did they seriously think the Court would abdicate jurusidiction? Perhaps it was intentional overclaiming--they thought that some (at least token) judicial opversight was inevitable, so focusing the issue on whether the courts have *any* role was a strategy for allowing the Court to assert power without really constraining the executive on the merits...

Any news on this??


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