I Would do Anything for Bush, But I Won’t Do That

In a way that was vaguely consistent with my earlier prediction, the Court refused to fully cede jurisdiction and give unlimited executive power to the presidency, but did so in a way that didn’t help the defendants on the merits. (I was wrong, however, that there would be a unanimous ruling.) I think it’s reasonable to declare these cases as a victory, although evidently it’s a narrow one. The Administration has broad powers to hold “enemy combatants,” and the Court used a technicality to send arguably the strongest of the three cases back to the lower courts.

The ruling in Hamdi is quite effectively summarized by O’Connor:

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.

The problem here is the implausible statutory construction–Congress didn’t give the President this authority. Shockingly, for the second time in a week Scalia (joined by JPS) gets it right in this case. Congress didn’t suspend habeas corpus, and as such American citizens simply can’t be detained without charges:

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. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.

Needless to say, his friend Thomas argued that the courts have no jurisdiction, even where American citizens are concerned.

I haven’t had time to read Rasul v. Bush yet, but the lineup is more straightforward–Rehnquist/Thomas/Scalia dissenting and giving unlimited power to the President outside of U.S. territory, absent an act of Congress. Ack. It’s good it came out right, but three votes is three more than that position deserved.