The court also decided two Miranda (coerced confession) cases today or rather decided (in Justice Kennedy's words in the case held to so violate) when "The interrogation technique used in this case is designed to circumvent Miranda v. Arizona." A hazy middle ground where Miranda is violated but coercion is not shown was introduced in one case, allowing introduction of evidence. Justice Souter's dissent was suspicious overall and in general sneers at the legal acrobatics used to encourage police wrongdoing a bit more.
"We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. ... 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."
-- Justice O'Connor, HAMDI et al. v. RUMSFELD
"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."
-- Justice Scalia (with Justice Stevens), Hamdi et. al. v. Rumsfeld, dissenting.
The enemy detainee cases were handed down today -- basic rule of law was upheld. The clear-cut necessity of this result as compared to what the government demanded was damn clear, unless your name is Justice Thomas (or one of three that bought the Guantanamo Bay dodge). The problem, and the realities of the situation must be noted even if it is deemed petty, is that civil liberties only were partial victors.
There was a sense of "we can only do so much today," and when Chief Justice Rehnquist joins the plurality in one enemy detainee/citizenship case and authors another, you say "uh ok," even if it is a partial win. Likewise, Jose Padilla (5-4) was punted on technical grounds, leaving Hamdi, the toughest case in a way (picked up in Afghanistan vs. in Chicago) as the standing precedent. Anyway, a discussion of the cases can be found here and here, and the links there supplied. I will discuss some of my overall thoughts.
Justice O'Connor's plurality uses a balancing test first set forth in a security disability benefits to determine that Hamdi deserves a hearing, the contours of which are unclear. There is a certain distaste to using such a test given what is at stake. Justice Thomas' solo opinion says that executive discretion in war time and the inability of court to judge the issues would swing thing the other way. There is a certain amount of truth to that, given the test used, but the other opinions (one labeled a dissent, the other a concurrence, but largely in form only) with crystal clarity lay down the gauntlet of the rule of law. If only Justice Breyer joined one of them!
Justice Scalia (with Stevens) suggests "formalism" (following the "forms" or rules set forth in the Constitution) often has a liberating effect. At least when we are dealing with citizens under the control of domestic courts, Justice Scalia offers two main choices: use of the Treason Clause to try or suspension of habeas corpus by Congress. Justice Souter (with Ginsburg) attacks the suggestion put forth by the plurality (joined by Thomas) that the "enemy combatant" designation was justified by law. Furthermore, not only did Congress not suspend habeas, a law passed with the Japanese detainees in mind clearly applies here, as does perhaps the Geneva Conventions.
Justice Scalia passionately sets forth the fundamental nature of these rights as well as the pragmatic (a pragmatism he finds in the Constitution) of letting Congress suspend habeas (or water it down), if it finds it necessary to do so. "A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions." A sentiment that gets clear support by four justices, somewhat opaque but clear enough support by four more.
One of the opaque four, however, confuses things a bit by joining Justice Stevens' dissent of the Padilla punt with Justice Scalia this time going along with the majority. Sheesh. Justice Stevens suggests the basic pragmatic nature of the majority's opinion avoidance, which tosses it back to the conservative Fourth Circuit to interpret things via Hamdi. His dissent via a footnote appears to give Justice Souter's Hamdi opinion four votes on key issues, five on a hearing if we include Scalia. It also briefly (and passionately) deals with the merits that warrants quoting at length:
At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.
Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.
Justice Stevens wrote the opinion in the Guantanamo Bay Case, an opinion he arguably has waited over fifty years to write. Justice Kennedy provides the sixth vote by reading things more narrowly, but brings to the fore the obvious:
Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. ... The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status.
The ultimate stake of the detainees is up in the air. The rule of law, even in wartime, is a lot more secure. Justice Scalia in the GB case suggests Congress could have made things clear by legislation. Unfortunately, as with the resolution that gave us this bloody war, it didn't fulfill all of its responsibilities. The Supreme Court today went a good way, if not all the way, in fulfilling theirs.