The Terrorism Opinions

Ken AshfordSupreme Court, War on Terrorism/TortureLeave a Comment

The Supreme Court has ruled on three cases involving terrorism detainees. I’ve only browsed the opinions, but one thing is clear: if Bush thinks he can do whatever he wants regarding prisoners by virtue of being a "war president", THAT myth is shattered.

That’s not to suggest that Bush got his ENTIRE ass handed to him today. The SCOTUS opinions are going to take a while to digest. But here’s my first blush view.

PADILLA – The issue in this case was whether an American arrested and held in America could be labelled an "enemy combatent". Regretably, SCOTUS punted on this. Like Newdow, they didn’t reach the case on the merits but rejected it on jurisdictional grounds. Padilla has to make his claims in South Carolina, not New York.

HAMDI – Here, the prisoner was an American too, but unlike Padilla, he was arrested in Afghanistan fighting against the U.S. The issues were (1) could Hamdi be labelled an "enemy combatent" and (2) could Hamdi challenge that designation in federal courts. The opinions are all over the place, but the answer appears to be "Yes" and "Yes".

This is by far the most interesting of the three cases, because the opinions provide a lot of meat. For example, the plurality writes that a war prisoner’s detention must be "to prevent a combatant’s return to the battlefield." What does this mean in terms of Hamdi? It means, says the Supremes, that he can be held only until the end of the "active combat operations in Afghanistan" — NOT (as some have said) until the whole "war on terror" is over. The kapow sentence, however, is this: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized."

RASUL – The issue in this case was whether U.S. courts had jurisdiction to hear the claims of foreign prisoners being held at Gitmo. This was clearly a defeat for Bush, as SCOTUS ruled (distinguishing Eisentrager) that the war prisoners had the right to the writ of habeus corpus. All in all, the opinions slap Bush’s hand pretty good.

UPDATE: I missed this, but it looks like even Scalia agrees with me. Check on this strong language from Scalia in his Hamdi dissent:

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis-—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.

Bam! Well-said, Antonin.

FURTHER UPDATE: And it looks like the Court is getting a little snarky, too. Check out this quote:

"History and common sense teach us that an unchecked system of detention carries the potential to become a means of oppression and abuse of others who do not present . . . an immediate threat."

And here is how SCOTUSBlog summarized today’s opinions:

By a vote of 5-4, the Court found the 2001 congressional declaration did give the President power to detain citizens and foreign nationals, if they are found on a foreign battlefield. By a vote of 8-1, citizens detained as "enemy combatants" have the right to a fair process under which they can challenge that designation and their continued detention. By a vote of 6-3, the Court ruled that the foreign nationals detained at the Cuba base have a right to file lawsuits in civilian courts to contest their detention and conditions at the base.

By the way, in the 8-1 ruling mentioned above — the dissenter was Thomas.