More Right Than Wrong

A Supreme Court Dialogue

More Right Than Wrong

A Supreme Court Dialogue

More Right Than Wrong
An email conversation about the news of the day.
June 28 2004 2:04 PM

A Supreme Court Dialogue

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Dear Walter,

For some reason, as I write to you, the early headlines perplexingly read: "U.S. Supreme Court Rules for Bush Administration."  I don't know what part of the decisions in Hamdi and Guantanamo are allegedly "victories" for the administration. Certainly I suppose it's nice news for the president that he is theoretically allowed to detain some enemy combatants under a limited set of circumstances. But the core claim put forth in these cases by the administration—that such decisions are fundamentally unreviewable by any court—was utterly decimated today. I hope that if they allow Hamdi and the Gitmo detainees access to newspapers in their respective dungeons, they can read more than just the headlines.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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I want to talk about Hamdi first. His was one of two cases (Jose Padilla's was the other) in which U.S. citizens detained on U.S. soil sought habeas corpus relief (the right to judicial scrutiny of their detentions) in the U.S. courts. Yaser Esam Hamdi allegedly fought for the Taliban against the United States in Afghanistan. His father contends he was a relief worker in the wrong place at the wrong time. The Bush administration claimed virtually limitless powers to lock up enemy combatants and throw away the key and further claimed that no court had the power to dispute those decisions. As a result, Hamdi's been in a Navy brig since April 2002.

In a 6-3 decision today, the court starts with the good news for Bush, holding that yes, the president can legally detain "enemy combatants" because Congress authorized such detentions when it authorized the use of military force after 9/11. But the opinion, authored by Justice Sandra Day O'Connor and joined by Chief Justice William H. Rehnquist, Justice Stephen Breyer, and Justice Anthony Kennedy, observes that this applies only to a very limited class of people and suggests that the purpose of these detentions is "to prevent captured individuals from returning to the field of battle and taking up arms once again." In fact, the opinion goes out of its way to note that indefinite detention for the sole purpose of interrogation is simply not authorized. (This alone should mean that Jose Padilla is on a bus to the airport this afternoon, but more on that later. ...)

After agreeing that Bush has the power to detain enemy combatants, the court turns to the question of Hamdi's right to due process. The court immediately rejects the administration's argument that it's somehow obvious or irrefutable that Hamdi is an enemy. Then it balances Hamdi's "private interests" against the chief executive's interest in promoting national security and comes out on the side of the little guy: "[A]s critical as the government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States, during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression for others who do not present that sort of threat."

The plurality opinion thus finds that before the government can lock away an enemy combatant, he must be given fair notice of the factual basis for that designation and an opportunity to refute those claims before a neutral decision-maker. Allowing that the exigencies of the situation may not permit the full range of rights afforded to ordinary criminal defendants, the court nevertheless offers enemy combatants the most important relief sought: a court, even though that court may be a military tribunal. More vitally, O'Connor explicitly rejects the administration position that the president cannot be second-guessed in these matters: "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."

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Justices David Souter and Ruth Bader Ginsburg concur in O'Connor's opinion, adding up to six votes now for Hamdi. Souter and Ginsburg go farther than the plurality, contending that the chief executive hasn't the authority to detain Hamdi or other enemy combatants. Souter reads the Non-Detention Act literally to mean that citizens cannot be detained unless Congress has explicitly authorized it. He spends lots of time on Korematsu and concludes that the detention is unlawful. Then there is a "dissent" by Justice Antonin Scalia, joined by his new ideological soul mate Justice John Paul Stevens. Scalia argues (we are up to eight votes now) that Hamdi's detention isn't permissible. Unless Congress is willing to suspend the writ of habeas corpus altogether, he argues, Hamdi is owed full criminal due process, or the right to walk free. I actually stopped counting references to Blackstone and the Magna Carta after a while. Scalia means business.

The Hamdi decision illustrates two of your own most basic theories about the Rehnquist Court: This case again pits the judicial pragmatists against the legalists. Scalia, who paradoxically offers the most zealous defense of Hamdi's right to habeas corpus, is joined in his dissent by Stevens because the problems they are having with the majority opinion are doctrinal. The plurality opinion tries to have it both ways—a strong executive branch and a strong preference for habeas relief—and Scalia calls them on it. The other principle you've always urged, for anyone who wants to understand the Rehnquist Court, is the notion of judicial supremacy. This court wants a strong Congress, strong states, strong chief executive, and mostly a strong Supreme Court that reigns over them all. With Hamdi, the plurality opinion offers a seemingly strong affirmation of the chief executive's power to detain enemy combatants, then unloads a "P.S." that essentially swallows the rule: The courts, not the president, get the final say.

I have loads of questions for you, like what to make of the fact that the court decided Hamdi but punted on Padilla? (And does the decision in Hamdi mean that Padilla will necessarily have his day in court, so long as he files his next habeas petition in the right one?) I felt strongly at oral argument that the court was much less sympathetic to Padilla than Hamdi—that at least some of the justices appeared more worried about tying the president's hands when an alleged "dirty bomber" (or as Breyer said, a "ticking time bomb") was the bad guy, as opposed to some punk kid who may have been fighting for the Taliban.

The Padilla opinion held 5-4 (usual suspects) that Padilla filed for habeas relief in the wrong court. Justice Stevens, in his dissent, berates the majority for punting on an "exceptional case." Padilla's secret transfer from the civilian court system, the "Star Chamber" created by the chief executive, and the justification that such measures are necessary to interrogate prisoners, are simply tyrannical measures in Stevens' view. It is no accident that Stevens also refers to torture in his conclusion, a conclusion that ends with the lines: "For this Nation 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."

I think today mostly stands for an enormous victory in the efforts to balance tyranny with reason. As a practical matter, I can't imagine how all these future terror trials can possibly work. But as someone largely terrified that today might have ended with a blank check for the chief executive, I think the court got it more right than not.

Looking forward to your thoughts,
Dahlia