Tuesday, June 29, 2004

Supreme Court Avoids Destruction of the Constitution

Two cases regarding 'enemy combatants', Hamdi v. Rumsfeld, No. 03-6696(PDF) and Rumsfeld v. Padilla, No. 03-1027 (PDF), were decided yesterday. Both cases upheld the habeas right for 'enemy combatants', indeed for all persons detained for any reason, at any location, by the U.S. government to contest the evidentiary basis for the detention, at minimum.

Rejecting unchallengable detentions by the Executive, even when such open-ended and poorly defined detentions are authorized by Congress, preserves the essential Constitutional order of our nation. The court, though at times venally activist and partisan of late, clearly recognized the danger of allowing the Executive to escape the essential check upon its discretion of habeas corpus and the jurisdictional authority of the Federal Courts. Under the guise of national security and the fiction of war (there being no declared state of war between the U.S. and any foreign power at this time), and under the dubious authorization of the September 18, 2001 joint resolution, Authorization for Use of Military Force, the Administration sought unlimited discretion in the disposition of persons taken in combat zones, regardless of the applicability of the Geneva Conventions. The Court's opinions recognize that allowing so much unaccountable power to the Executive is fundamentally incompatible with limited government. Underlying their recent opinion is a conviction that such coercive power, completely unchecked, would eventually swallow the Constitution whole.

In the past, the Court allowed the Executive to temporarily intrude upon civil liberties in time of war to a greater or lesser extent. Chief Justice Rhenquist wrote a book on the subject, in fact. But the Administration claimed that its actions were not only due deference, but are permanently beyond any judicial review or oversight by Congress. Obviously, such completely unconstrained power over the freedom and lives of any person, even foreigners, is not compatible with human rights or with our Constitutional order of limited government maintained by internal checks and balances.

Justice O'Connor, writing for the Majority, states:

"[We] reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in [times of war]. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. 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." (parentheticals added by author)


The Majority remanded the cases for a determination if there is a factual basis for the detentions.

Scalia would go further and reject the whole idea of holding Americans as 'enemy combatants, instead trying them for treason. In his dissent, he opines: "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." Scalia is convinced that indefinite detention can only be justified upon a Congressional suspension of habeas corpus.

It is heartening that of the Justices, only Thomas was convinced by the Administration's case. All the rest find the Administration's theory of Executive authority in war disturbing and unacceptable. That in itself is cause for celebration. June 28, 2004, American democracy dodged a bullet.

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