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A Supreme Court Dialogue

the breakfast table
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from: Walter Dellinger
to: Dahlia Lithwick

The Mother of All Rights

Posted Monday, June 28, 2004, at 5:22 PM ET

Who Are These People?

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My goodness, Dahlia!

The Great Writ lives. Government by law is reaffirmed. Constitutional balance is restored. A historic day. It's hard to know where to begin.

First, habeas corpus and the Guantanamo case. By a vote of 6-to-3, in an opinion written by Justice Stevens (with Rehnquist, Scalia, and Thomas dissenting), the justices hold that U.S. courts have jurisdiction to consider challenges by those detained at Guantanamo as to the legality of their detentions. To assess the magnitude of this holding, keep in mind that the entire Guantanamo detention operation was predicated on the assumption that there would be no access to U.S. courts by these non-citizens, on the theory that the Guantanamo Naval Base is technically on the sovereign soil of Cuba. As Justice Scalia said in his dissent, "[T]he Commander-in-Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs."

The court's majority, however, was unwilling to use the legal fiction of Cuban control to avoid the availability of habeas corpus. Habeas corpus is, in a real sense, the "mother of all rights." Someone who is held in detention can get a piece of paper to a court and have the court demand from the jailer an explanation of why this person can lawfully be held against his will. Quoting from Justice Robert Jackson, the court asserts that "the historic purpose of the writ has been to relieve detention by executive authorities without judicial trial." (Note that in the Hamdi case, in which the petitioner is clearly in the United States, Justice Scalia comes forth as at least a sixth strong advocate on the court for habeas: "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.")

In Rasul, the court does not answer the question of what kind of judicial process the detainees will now receive. "What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." But in answering that question in the affirmative, the court does a great deal. Access to courts is the key. Once a detainee has that, due process is sure to follow.

I think Hamdi is even more significant than the Guantanamo cases. Sure, the court held that there was a category of "enemy combatants" that could be detained on executive order, but it is described—repeatedly—as a "narrow category," apparently limited those captured individuals who would otherwise be "returning to the field of battle and taking up arms once again." Well, of course! How could it be otherwise? Surely no president would even be required to return an enemy combatant into an active shooting war. More significant is the statement of what the category of "enemy combatant" may not include: "We agree [with Hamdi] that indefinite detention for the purpose of interrogation is not authorized." Of greatest significance, however, is the ruling on the amount of due process to determine whether a given individual is in fact an enemy combatant and is in fact being held for the narrow legitimate purpose for which an "enemy combatant" can be held. Because "the risk of erroneous deprivation of a citizen's liberty in the absence of sufficient process here is very real," a citizen seeking to challenge his classification must have notice "and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker."

That is a major decision. Do you think the opinions were influenced by the pictures from Abu Ghraib and their prose equivalent, the memorandum from the Office of Legal Counsel at Justice?

Reply soon,
Walter

the breakfast table
entries
12345678910
from: Walter Dellinger
to: Dahlia Lithwick

The Mother of All Rights

Posted Monday, June 28, 2004, at 5:22 PM ET
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Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor.
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