Sunday, May 02, 2004

Good News from the U.S. Supreme Court


I am moved nearly to tears this morning by the Court's decisions in Hamdi and Rasul (The Guantanamo Detainee case). I have thought for a number of weeks that the outcome of these cases was, to a certain extent, obvious, although in my mind Hamdi (and Padilla, not yet decided), are much more obvious than Rasul. Nevertheless, I am very relieved and proud of the vibrancy of our system when I see how it stands up to a Constitutional challenge that, in my opinion, threatened to undercut the separation of powers. That separation is not so fragile as I had feared.

Perhaps I am being too dramatic.

The issue in Rasul was whether U.S. courts have jurisdiction to hear a petition for habeas corpus when the petitioner is a foreign national in military custody who have no presence "in any territory over which the United States is sovereign." The lower courts had dismissed the claims of the Gitmo detainees, citing a case called Eisentrager, which was a World War II-era case denying a U.S. court remedy to German citizens captured by U.S. forces in China. Guantanamo Bay is under the exclusive control of the U.S. by treaty, but the U.S. does not have "ultimate sovereignty" since the base is leased, not owned. This makes a neat little loophole, if we accept the administration's reasoning: U.S. courts don't have jurisdiction under Eisentrager because the U.S. is not the "ultimate sovereign," but neither does any other power, since the detainees are under the "exclusive control" of the U.S. military.

To me, the interesting question of Rasul is extra-judicial: to what extent was the majority influenced by revelations of torture at Abu Ghraib? I can easily see one or more justices mistrusting the SG's protestations of good executive intentions in light of that bit of news.

Hamdi was an American citizen captured in Afghanistan and, until recently, denied even access to counsel, much less a remedy in the court. This case seems much more obvious than Rasul, in that Hamdi is an American citizen and he is being held in a navy brig in the territorial U.S. (where the U.S. is the "ultimate sovereign"). Yes, the court said that he could be held without charges or trial, but they did say he should have the right to contest the factual basis for the determination that he is an enemy combatant before a neutral decisionmaker.

The text of Rasul is here. The text of Hamdi is here. (Links courtesy of SCOTUSBlog).


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