Canceling the Blank Check

How far do the latest Supreme Court rulings really go to defend civil liberties?

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“At stake in this case is nothing less than the essence of a free society.” So goes Justice John Paul Stevens’ dissent on Rumsfeld v. Padilla, one of three Supreme Court cases decided on Monday, determining whether the White House had the right to detain terrorist suspects without trial. In a sharp rebuke to the administration, the court essentially argued, in the words of Justice Sandra Day O’Connor, “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

Of the three decisions, that of Hamdi v. Rumsfeld turned out to be the most significant. The case concerned the fate of Esam Hamdi, an American citizen captured in Afghanistan and currently held in a Navy brig in South Carolina. The administration had argued that the president had the right to designate any American an “enemy combatant” without first consulting the courts.

The Supreme Court’s 8 to 1 majority opinion concluded that while the president could keep Hamdi away from the battlefield, that detention could last only until the end of “active combat operations in Afghanistan.” After that time, Hamdi must be granted a trial and legal counsel in order to contest his status as an “enemy combatant.” Even this decision understated the Court’s genuine aversion to the president’s position: four justices, including the conservative Antonin Scalia, wrote a partial dissent stating that the government should have no right at all to detain Hamdi, unless it decides to suspend habeas corpus.

In Rasul v. Bush, the Supreme Court, by a vote of 6 to 3, granted foreign nationals detained at Guantanamo the right to file lawsuits to contest both their detentions and conditions at the base.

In Rumsfeld v. Padilla, the court essentially punted, arguing that Jose Padilla should have brought his case before South Carolina, where he is being held indefinitely. Nevertheless, Padilla’s case will likely resolve itself along the lines of Hamdi, meaning that Padilla will get to contest his status as an “enemy combatant” before civilian courts. Padilla was arrested in May 2002 for his alleged role in a plot to explode a radioactive “dirty” bomb.

So what does it all mean? Lyle Denniston, a lawyer at Goldstein and Howe, explains why the Court’s decision may “force a fundamental reordering of constitutional priorities, especially in the way the government may deal with individuals caught up in that war.” Specifically, both the courts and Congress will now have the ability to judge wartime actions that affect individuals. The president’s hitherto unquestioned authority on the battlefield has been severely curtailed. Citizens, even terrorist suspects, can no longer be detained indefinitely. Finally, the court asserted its right to oversee the Navy facility in Guantanamo, Cuba, an area that had previously remained outside its jurisdiction.

But for all its sweeping changes, the Hamdi v. Rumsfeld decision fell well short of upholding the inalienable rights of all U.S. citizens, as Michael Froomkin, a law professor at the University of Miami, explains:

[The decision] requires that the court “balance” interests, keeping in mind the costs of providing more procedural protections, a view that comes perilously close to the view that no right is really a “right” — not inalienable, just an interest to be traded off against others, with no clear rules to guide the judge.

Hence, the justices arrived at a compromise position. Hamdi will be given “a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” But, as Froomkin points out, once the government makes its case, “the onus could shift to the petitioner to rebut that evidence with more persuasive evidence.” Since such a task can prove difficult for a prisoner shuttered away in solitary confinement, detainees will have to fight a serious upward battle to prove their innocence.

Taking a similar view, David Von Drehle, in The Washington Post, pointed out that the decisions hardly constitute a total defeat for the White House:

The justices left unresolved how tightly they intend to rein in the president. All of them paid deference to the heavy responsibility of the commander in chief and his duty to keep the country secure. Even as they reaffirmed the bedrock principle of checks and balances, they left Bush and his successors substantial room to operate.

Jack Balkin, a Yale law professor and blogger, threw in his own concerns:

The plurality dodges the question of whether the Executive can hold detainees forever. It insists that as prisoners of war detainees must be released when hostilities cease, and says that as of yet, the war in Afghanistan has not ended. What about the war against Al Qaeda? The Court has nothing to say on this point.

More importantly, Balkin believes the case was fundamentally a power struggle between the executive and the judicial branch. The Supreme Court had responded with such ferocity only because the White House had told the courts they were irrelevant. Balkin notes a possible consequence of this decision: “If the Administration now goes through the motions of justifying its decisions before a court, courts are much more likely to let it do what it likes.”

But despite all the caveats, many commentators rightly celebrated the decisions as a landmark victory for civil liberties. In The New York Times, Anthony Lewis declared: “It was as profound a day in the court as any in a long time.” Last month, in the pages of Mother Jones, Lewis had argued that “The Bush administration is really attacking a basic premise of the American system: that we have a government under law.” With the recent Court decision the priority of law over government has certainly reasserted itself.

The effects should be immediate. As the Associated Press reports, the decision will likely pave the way for a rush of new lawsuits against the government by Guantanamo detainees:

“We will be filing hundreds of cases,” said Qatari lawyer Najeeb al-Nauimi, who belongs to a committee of defense lawyers claiming to represent more than 300 detainees. “The Supreme Court reinstated our trust in the American judicial system.”

Meanwhile, the Boston Globe suggests that the decision could help restore America’s tarnished image abroad:

“Most enlightened opinion in the world understood that you can’t lock someone away in a black hole and throw away the key and say you’re following the rule of law,” said Mark Agrast, senior vice president for domestic policy at the Center for American Progress, a liberal/centrist think tank.

Added Agrast: ”Hypocrisy is not an aid to international relations. It is vitally important that the world understand that the rule of law is not something we talk about but practice at home.”

Over on the other side of the political spectrum, conservatives showed outright displeasure over the result. Over at National Review Online, Robert Alt grumbled: “The decision will have a deleterious effect on the military’s ability to carry out the war on terror.” This may be true. Nevertheless, this country has faced a number of pressing, dire challenges — from the two World Wars to the threat of nuclear annihilation. We did not tear up the Bill of Rights then, and we should not do so now.

On a final note, Eugene Volokh, a UCLA law professor and blogger, points out what may be the most significant result of the decisions. Unlike many recent cases, the Supreme Court justices in this case did not vote across traditional liberal-conservative fault lines. As Volokh suggests, “These votes may well change the political dynamics within the conservative and liberal movements.”

Maybe. It would certainly be nice to have to have the debate over civil liberties take place in a realm free of partisan rancor. Thus far, opinions have by and large divided neatly into Bush-supporters and Bush-detractors. A more mature, more intelligent discussion about civil liberties during wartime is long overdue, and in that respect, Monday’s court decisions have set the right tone.


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