Monday, June 28, 2004

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Open Gitmo thread

Feel free to comment on the implications of today's Supreme Court ruling on the Guantanamo detainees here. Before commenting, it might behoove you to check out:

1) The actual cases -- Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla.
2) The media coverage -- The Financial Times, Washington Post, New York Times, and Slate.
3) The blog coverage -- particularly Larry Solum, Marty Lederman (SCOTUSblog), Jack Balkin, Pejman Yousefzadeh, and all of Moday's posts from the Volokh Conspiracy.

I haven't processed much of this yet, but so far Stuart Benjamin's point about formalism vs. pragmatism and Eugene Volokh's point about liberal and conservative iconoclasts on the court seem the most interesting to me.

posted by Dan on 06.28.04 at 09:22 PM


The majority opinion in Rasul v. Bush is also notable for what it doesn't say. Scalia's dissent shreds the majority opinion on the merits, but what is really scary is what isn't in the majority opinion - mention of almost all contrary precedent.

The majority opinion presents a surprising but characteristic (of bad decisions) type of analysis - result first and reasoning afterwards. Given the briefing, the majority opinion reads like an advocate's brief itself, not a judicial opinion. They flat out disregard the plain language of the habeas corpus statute, as Scalia points out, ignore the vast amount of contrary precedents, and invent immaterial distinctions to get around the precedents they can't ignore.

This tells me that a six-judge majority of the United States Supreme Court is directly challenging the Executive Branch's war powers.

In a war where the homeland has been attacked with biological weapons.

There will be more majority opinions like Rasul v. Bush in this war. Not only will it be used to create more bad opinions, but the majority clearly does not feel itself bound by past precedents.

Bush 43 will try to avoid this fight, but this lawless Supreme Court majority won't let him. They'll push and push and push until finally they meet resistance, and then they'll find out the hard way that the judicial branch is the weakest branch of government.

The struggle will get lots of Americans killed. And, from a judicial perspective, it will result in vast disrespect for the judicial system and the laws in general.

This lawless majority will bring about that which they (purportedly anyway) most fear.

"Those whom the gods would destroy, they first make mad."

posted by: Tom Holsinger on 06.28.04 at 09:22 PM [permalink]

Paging Justice Breyer:

I really wish Breyer had written something, even a few paragraph concurrence in either Hamdi or Padilla so we could make sense of what he thinks. And, this is fundamentally important, because he seems to be the key.

Regardless, I think that Breyer could sign on to Hamdi and on the Stevens' dissent in Padilla without raising any red flags. The one critical distinction that exists between the two is the situs of capture.

To that end, the AUMF could authorize detention of Hamdi because he was (or so it is alleged) captured on a battlefied. The only way to apply the AUMF to Padilla would be to classify the US as such a battlefield.

I was struck by reading the opinion of the "O'Connor four" in Hamdi how often it is that her language seemed to address seizures in Afghanistan of people waging war against the US. My guess is that that was the cost of Breyer signing on. If he didn't sign on, and O'Connor's opinion were not geographically limited, Breyer could have separately concurred that AUMF applied to Hamdi because of geography.

That situation would create a 1-3-1-4 court...with Thomas being the crazy outlier.

The most important part of this post is this: What in god's name is going on with the first sentence of Section III and especially FN 8? If Breyer does not agree with the language below, shouldn't he have at least made that clear? Alternatively, it the first sentence below a nod to Breyer's disagreement with the FN?

"Whether respondent is entitled to immediate release is a question that reasonable jurists may answer in different ways." (FN 8: Consistent with the judgement of the COA, I believe that the Non-Detention Act, 18 USC Sec. 4001(a) prohibits-and the AUMF Joint Resolution, 115 Stat. 224, adopted on September 18, 2004 does not authorize - the protracted incommunicado detention of Americans citizens arrested IN THE UNITED STATES."

posted by: Jim on 06.28.04 at 09:22 PM [permalink]

The usual suspects are proclaiming this batch of Supreme Court opinions a triumph for the rule of law, a victory against incipient tyranny and a message to the rest of the world that America is more than just the Bush administration.

I wouldn't put it that way, but I don't really have a problem with Hamdi or Padilla on a first reading. Rasul v. Bush, though, has the Court gratuitously opening a can of worms by declaring off its own bat that the right of habeas corpus applies equally to citizens and aliens, even aliens held on foreign territory for acts committed on foreign territory.

Rasul makes some commentary I have seen about the Court pragmatists and formalists seem very strange indeed. Pragmatists and formalists joined together here to rule that all detainees in the war on terrorism have the right to challenge their detention in American civil courts -- not only so, but in any jurisdiction. A formalist objection to this ruling might be that it is unsupported by any earlier Court ruling, and amounts to the Court deciding to change the application of habeas corpus to include alien detainees because it thought this (in Oliver North's phrase) "a neat idea." And Justice Scalia does make such an objection in his dissent.

But how is this ruling pragmatic in any way? I can see the Court nudging the administration toward its preferred view that alien detainees should have some right of appeal somewhere, but Rasul appears to give them the habeas rights of any citizen with the handy additional right to forum shop. In the middle of a war on al Qaeda terrorists this appears to invite the enemy to enlist the American judicial process as a weapon on its side. I could call this many things but "pragmatic" is not one of them.

My understanding, which may be incomplete, is that the majority in Rasul ruled on the application of a section of statutory law relating to the jurisdiction of district courts to entertain habeas applications, rather than on constitutional grounds. That being the case, the damage done in Rasul could be repaired by Congressional action clarifying that the rights of American citizens apply to -- you guessed it -- American citizens, not to every Tom, Dick and Mohammed captured overseas in the course of military operations. We'll have to see if Congress is awake and alert enough to start work on the necessary legislation before the first wave of litigation washes ashore from Guantanamo.

posted by: Zathras on 06.28.04 at 09:22 PM [permalink]


I am one of those that feels as though two of the decisions are vindication for constitutional democracy.

That said, I agree with your concern regarding forum shopping.

It is kind of nuts that people in Gitmo can bring suit anywhere (and apparently name Rumsfeld) while Padilla is constrained by the court's deference to a supposed bright line custodian rule, which does not exist.

As to congressional action, I think that they could tinker with the Federal rules to eliminate the potential for forum shopping, though I do not think it possible to simply re-write legislation expempting gitmo out of the jurisdiction of an art. III court. Then again, I could be wrong about that too.

posted by: JIm on 06.28.04 at 09:22 PM [permalink]


You assume that the normal rules continue to apply. The majority opinion in Rasul v. Bush shows that they do not feel bound by the normal rules.

It has become straight power. The law is what they say it is because they're a majority of the Supreme Court and think there is no appeal from their decisions.

Only the People can the final say, and will because this time they're among those doing the dying.

posted by: Tom Holsinger on 06.28.04 at 09:22 PM [permalink]

In Hamdi, there were eight votes repudiating the administration's assertion of plenary power to pick up those it judged to be enemy combatants and detain them indefinitely. The most eloquent and biting repudiation came from Scalia.

It obviously would have endangered fundamental liberties had the Court, as Justice Thomas would, aquieseced to the executive's view. But from a straight political, Rovian, standpoint, was it shrewd to take this line, only to have it treated so unkindly by the Court? I'd like to think that Bush has paid something of a political price for his arrogance.

posted by: Hopeful on 06.28.04 at 09:22 PM [permalink]

I was going to offer my insights until Prof. Drezner suggested that before commenting, we might want to read some of the articles and opinions that have already been written. Ugh. What fun is political commentary if it is informed?

posted by: nobody on 06.28.04 at 09:22 PM [permalink]

I did read all the posts, and now my brain is so farged up I can barely type my own name.

posted by: farged on 06.28.04 at 09:22 PM [permalink]

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