A Neutral Tribunal

Hard Cases Make Weird Law

The Supreme Court has ruled in the case of Yaser Esam Hamdi, and unsurprisingly, a plurality of Justices reaffirmed the judiciary's power to review the detention of U.S. citizens while authorizing the classification of Hamdi as an "enemy combatant." While news reports declare this a setback for the Bush Administration, my very cursory initial reading of the opinion (pdf) by Justice O'Connor (joined by Rehnquist, Kennedy and, surprisingly, Breyer) is that it really is nothing more than a pinprick on an elephant hide. In fact, the Court suggests several means for the administration to get around their ruling. In short, the Court ruled 7-2 that the government has the power to classify a citizen as an enemy combatant - whatever that is - under some circumstances (they split 4-2-1 on what circumstances) and Antonin Scalia emerges as the staunchest defender of liberty. To say it is strange would be an understatement.

Half a Loaf

In the best part of the plurality's decision, the Court considered and rejected in detail the Fourth Circuit's decision that once the military had declared someone an enemy combatant, that they were thereafter not due any protection of the courts. Instead, there must be a hearing to determine if the facts of the case support a finding that the detainee is an enemy combatant. Incredibly, though, the Court left open the question of what exactly an enemy combatant is, holding only that it includes "individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target" in the use of force resolution.

The Court also declined to set a clear limit on how long Hamdi can be held:

[W]e 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.

What's the bottom line? It's not clear. The implication seems to be a double-edged threat: if the Court's "understanding" of the laws of war is no long operative, it is saying it will revisit the scope of the power of the executive to detain. Which way they would adjust the scope of the power, either to expand it to include lifetime detention without active combat occurring or forbid such detention, is not clear. This statement seems to me to be primarily a cautionary note to the government that, if pushed on the question, the Court may come down with a rule that the Executive will not like.

Presumed Guilty

That aside, the core ruling of what happens to Hamdi next must be one that the Executive likes:

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. ... [A]side from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant.

In other words, the presumption of innocence does not apply, and the detainee has to provide evidence he's not an enemy combatant, which is not defined. This works well for CNN reporters, not so well for illiterate farmers. Which, of course, is the point.

The Court also tosses in the observation that military tribunals could do all that is required, which strikes me as a plea to get these cases out of the federal courts, which would solve the uncertainty problem for the military and relieve the Court of the obligation of displeasing the public by "coddling terrorists."

A Little More Free, Please

Justices Souter and Ginsberg, trying to strike a better balance, say that detention of enemy combatants would be lawful if Congress authorizes it explicitly, but that it didn't do so in this case. Dissenting in part and concurring in the result, their opinion is notable most for the fact that the plurality seems to totally ignore it.

Antonin Scalia, Hero

Perhaps the most surprising part of the decision is that Antonin Scalia delivers a dissent, in which Justice Stevens joins (words you will likely never read again), in which he forcefully argues that any detention of a U.S. citizen which occurs while habeas corpus is not suspended entitles that person to the full panoply of rights a criminal defendant is entitled to. In short, he says, charge Hamdi or let him go. Scalia's absolutely right.

In all, not a great day for the highest court in the land, although it's also not the Korematsu of the 21st century. Hamdi will get his day in court, and after a fair hearing, he will be locked away, probably for good. The respective power interests of the government branches have been protected, and civil liberties has taken a hit again, as a result.

Update: Jack Balkin:

In essence, the Court has said in these cases: don't tell us that we are irrelevant. The flip side of that demand is that if the Administration now goes through the motions of justifying its decisions before a court, courts are much more likely to let it do what it likes. In that sense, the decisions in Hamdi and Rasul cannot be understood to be complete victories for civil liberties. But they are better than the alternatives.

An understatement, to be sure. But he's right.

Comments

[Russ]

Thanks for the analysis...I have not read the opinions yet - just analysis around the web, but any excitement I may have had was quickly flushed away by the losses that were still sustained.

All in all, from what I can tell, a wishy-washy opinion that seems that the court is more concerned about preserving its relevance (as you seem to put it) than actually bringing in the ever expansive claim of civil rights abuse by this government.

By not putting hard limits on the lengths of these detentions, the Supreme Court not only makes it likely, but virtually guarantees that the renegade (well, renegade to the Constitution - otherwise consistent with the rest of the Executive) Justice Department will push the boundaries in virtually every case they can, meaning that this will either go back to the Supreme Court at a later date for further clarification, or they will decline cert to later cases, defer to the executive and show their true impotence in being a check and balance on (at least) the executive.

Now all we need is Ashcroft to mutter something about the Supreme Court making their decision - let them enforce it (even if it is dubious that the original quote was ever made :)