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June 28, 2004

More SCOTUS analysis

SCOTUSBlog has an excellent analysis of the decisions (link courtesy of Atrios). The headline: "Hamdi and Padilla Appear to be a Huge Loss for the Government."

They start with the big line from Stevens' dissent in Padilla (essentially an argument for deciding against the case on its merits, instead of sending it back to the lower courts on technical grounds):

"At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process. Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."
To which we can only say, Yeah! (And, perhaps, note a subtle slam at the Court's own hand in deciding the last election for the people. Sort of a "well, we really Cheneyed that one up, so we better get it right here" moment, italics mine.) It's also a good idea to brush up on the history of the "Star Chamber," to see where we would have ended up if Bush et al. had gotten their way here.

SCOTUSblog continues:

In Hamdi, four Justices, including Justice Scalia, conclude that Hamdi's detention itself is unlawful -- a result that Hamdi himself barely argued for (his briefs being more focused on the opportunity to challenge his enemy-combatant status). Four other Justices -- Justice O'Connor, joined by the Chief Justice and Justices Kennedy and Breyer -- conclude that Congress's 9/18/01 authorization of military force (AUMF) authorizes detention of a "narrow" category of persons: those who are "part of or supporting forces hostile to the United States or coalition partners" in Afghanistan and who "engaged in an armed conflict against the United States there." They read the AUMF to authorize detention of such persons "for the duration of the particular conflict in which they were captured" (because, says the plurality, such detention "is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use").

The plurality goes on to emphasize, however, that the detention must be "to prevent a combatant's return to the battlefield," which the plurality views as "a fundamental incident of waging war." This means that Hamdi can be held, the plurality concludes, not until the end of the "war on terror," which the plurality acknowledges may not come in Hamdi's lifetime, but only until the end of the "active combat operations in Afghanistan." And here's the key sentence: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized."

This should mean that Padilla's detention -- which the Government acknowledges is principally for the purpose of interrogation -- likewise is not authorized. Even if Justice O'Connor's opinion might not conclusively dictate that result, there are (at least) five votes for it: the four dissenters in Hamdi, as well as Justice Breyer, who joins the Stevens dissent in Padilla.


In other words, taking the three cases as a whole, not even the Republican-appointed majority is prepared to back the Bush junta on this one.

Posted by jay at June 28, 2004 10:35 AM | TrackBack
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