Tuesday, July 06, 2004

Scalia trifecta

After thinking for a while about the three big detainee decisions by SCOTUS, I have to agree with Scalia on all three counts. For Hamdi & Padilla, it's I think it's pretty clear-cut:

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." -Constitution

"Absent suspension of the writ, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release." -Scalia

We aren't facing invasion or rebellion. And in any event, Congress has not suspended habeas corpus.

Now, Hamdi and Padilla are citizens being incarcerated in the United States, in our court's jurisdiction. With Rasul, this is not the case. Thus things are not so simple. As Scalia put it,
The Court today holds that the habeas statute, 28 U. S. C. §2241, extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This is not only a novel holding; it contra-dicts a half-century-old precedent on which the military undoubtedly relied, Johnson v. Eisentrager, 339 U. S. 763 (1950). The Court's contention that Eisentrager was somehow negated by Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973), a decision that dealt with a different issue and did not so much as mention Eisentrager is implausible in the extreme. This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field. I would leave it to Congress to change §2241, and dissent from the Court's unprecedented holding.

As we have repeatedly said: Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree....
An interesting thing about these cases is the ways the justices were split. In Hamdi, Scalia's dissent was actually more in favor of Hamdi than the plurality opinion, which only required Hamdi be given some form of due process, not the full habeas corpus. Guess who joined in Scalia's dissent? Stevens - not what you'd expect if you were thinking in terms of the usual left-right political spectrum. In Rasul, Scalia's dissent was less-surprisingly joined by Rehnquist and Thomas.

For more extensive commentary on these decisions, the best place to go is of course the Volokh Conspiracy.

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