Notes on the Atrocities
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Monday, June 28, 2004  

Supreme Court Decisions

The other big news--and here the blogsphere seems to take an interest--are a troika of Supreme Court decisions that came down this morning.

The high court supported the U.S. federal government in one important respect, ruling that Congress gave President Bush the authority to seize and hold a U.S. citizen, Louisiana-born Yaser Esam Hamdi, as an alleged enemy combatant.

But the court ruled that Hamdi could use American courts to argue that he is being held illegally. Additionally, foreign-born men held at a Navy prison camp at Guantanamo Bay, Cuba, can also have their day in U.S. courts, the justices said in ruling on a separate case.

The court sidestepped a third major terrorism case, ruling that a lawsuit filed on behalf of detainee Jose Padilla improperly named Defense Secretary Donald H. Rumsfeld instead of the much lower-level military officer in charge of the Navy brig in South Carolina where Padilla has been held for more than two years.

With court decisions, it's always a little difficult to tell what the upshot is. Fortunately we have analysis from a law firm whose specialty is Supreme Court cases.

The Supreme Court's first review of the Bush administration's handling of the war on terrorism may force a fundamental reordering of constitutional priorities, especially in the way the government may deal with individuals caught up in that war. Amid all the writing by the Justices in today's three historic rulings, no sentence stands out as vividly as this one, "A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Given the almost limitless claims to presidential power that the administration has been making in court cases and other forums since soon after the September 11, 2001, attacks, that statement - and all that it stands for in the new rulings - must be taken as a severe rebuke....

The President, of course, did not lose everything he had at stake. By a vote of 5-4, the Court ruled that Congress' post-9/ll declaration supporting the President's response to those attacks had authorized the Executive to capture and detain, perhaps even until the end of the war on terrorism, those suspected of being terrorist activists acting in open aggression toward the U.S. Even so, the Court did not necessarily embrace that as an enduring constitutional concept: it added that the idea of detention for the duration of a conflict had emerged from the era of traditional wars, and then commented: "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." In other words, a war on terrorism that has no end may turn out to be too long for the Justices to go on allowing indefinite detention.

Their analysis is thoughtful and detailed. It's well worth the ten minutes it will take to read.

posted by Jeff | 12:31 PM |
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