Tuesday, June 29, 2004

"A State Of War Is Not A Blank Check For The President"

The Supreme Court ruled yesterday that the U.S. is not a police state, that Guantanamo Bay is not a black hole free of accountability and oversight, and that the President is not allowed to "disappear" American citizens and hold them indefinitely without trial.

Breathe a sigh of relief.

Hamdi v. Rumsfeld offers a fascinating view of the dynamics of the court. Can the government hold U.S. citizens as enemy combatants? There are four separate opinions among the nine Justices. Are U.S. citizens so detained entitled to a trial? Three separate opinions. The two-part ruling, which asserts that U.S. citizens may be detained as enemy combatants only after a trial before a "neutral decisionmaker," is the result of coalitions between Justices who don't agree on the specifics. And Scalia - my personal bete noire on the Court, and a man who previously has never met a Republican government power he didn't like - is on the right side of both cases. There was a complete split between Scalia and Thomas, who have historically voted the same way 95% of the time.

The full decision is worth reading. Among the points that jump out at me: the majority opinion, written by Sandra Day O'Connor, rejects the idea that the "War on Terror" is so special and different from other wars that it demands different rules. Under international law, POWs are permitted to be held until the end of hostilities, at which point they must be released. Hamdi's lawyers argued that if, as the Bush Administration claims, he is being held in the "War on Terror," hostilities may not be over for generations. O'Connor sensibly points out that in fact Hamdi is being held in connection to the war in Afghanistan, not the War On Abstract Principles, and that he may only be held until the end of hostilities in Afghanistan:
Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. [...] The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." (emphasis added)
O'Connor also smacks down the Bush Administration's extraordinary claim that they have the right to hold U.S. citizens based on the evidentiary standard of "some evidence," meaning that detentions must be declared legal if there is "any evidence in the record that could support the [Administration's] conclusion," rather than, for example a preponderance of the evidence or evidence beyond a reasonable doubt. O'Connor writes:
[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 and abuse of others who do not present that sort of threat. [...]

It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.

But I'm shocked to read Scalia's dissent, which begins, "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." He argues that the Administration ought to either charge Hamdi with a crime (such as treason), or let him go. He flatly rejects the possibility of detention until the end of hostilities. Scalia. Yes, I know that the classical conservative is deeply skeptical of the powers of government to restrict individual liberty, but that's hardly the way that Scalia has ruled from the court. I'm astounded. Pleasantly.

Not so astounded by Thomas's dissent: "This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners' habeas challenge should fail, and there is no reason to remand the case." Thomas obviously failed to subject the issue to the often-recommended test of closing one's eyes and imagining Clinton having the power to indefinitely detain U.S. citizens.

The Bush Administration is trying, pathetically, to spin these decisions as a win.
"They are basically upholding the whole enemy combatant status and tweaking the evidence test," said David B. Rivkin Jr., a lawyer who has advised the administration on terrorism issues. "The only difference I can see is that you are entitled to have you or your lawyer give your side of the story."
Yes, and you're entitled to have a neutral judge determine the validity and legality of the government's claims. While this difference may seem slight to Mr. Rivkin, it is, in fact, the difference between tyranny and the rule of law.