It’s a fantastic thing that the Supreme Court is releasing audio of oral arguments in significant cases. People all over the country can hear the arguments in critical cases that define our rights for years to come.
Rumsfeld v. Padilla, and to a lesser extent Hamdi, are such cases. Or could be.
There is less room to skirt the issues than last week’s cases involving non-citizens (e.g., Rasul v. Bush), but skirting is possible. If the Court wants to avoid the substantive issue for now, Padilla can be ruled on a jurisdictional error and Hamdi can be ruled on the interpretation that Guantanamo is not under U.S. jurisdiction — at least in an Article III sense.
One hopes the Court doesn’t skirt the issues, however, because good solutions exist. The normal powers of a Commander-in-Chief can persist, alongside the ability to gather intelligence data, while still affording the prisoner due process. In some cases, due process will be a military court as has been done in the past, but this is clearly better than indefinite and unrepresented detention.
In Padilla’s case, the written law seems clear — the Non-Detention Act of 2004 in addition to case law (e.g., Ex Parte Endo, Ex Parte Milligan) clearly indicates that Padilla must be afforded due process, unless there is a clear Congressional act to grant the Executive Branch extra-constitutional detention powers. No such grant exists, and so the government’s case depends largely on a massively expansive reading of the Authorization for Use of Military Force. A reading of the AUMF expansive enough to justify unlimited detention would clearly fall afoul of Ex Parte Endo, in which the Court required a narrow construction on broad powers which depart from clear constitutionality.
Perhaps the most important and poignant reason for ruling on the merits in these cases is given in the amicus brief filed by Fred Korematsu, the former Japanese detainee who challenged Roosevelt’s executive order and was sent to prison. Only 40 years later was his conviction overturned and vacated. Korematsu remains one of the most powerful reminders why Executive power should not be unlimited. Even the best, most far-seeing Presidents (including FDR) are capable of mistakes — even capable of abusing the power of the office under pressure. Korematsu reminds us that Hamdi and Padilla should be given trials, where evidence against them can be presented, a defense mounted, and due process accorded. How can we deny any citizen due process, if we expect to receive it ourselves if the need arises?
Clearly, the nation and homeland must be defended. What is unclear is that defense calls for a complete suspension of normal due process, except in truly emergency circumstances — the kind of situations already envisioned within the provisions of the habeas corpus statutes. The kind of discretion temporarily exercised by Lincoln with care and soul-searching during the depths of the Civil War.
Although I remain unconvinced that the Court will find a compelling reason to rule in favor of the detainees in Rasul v. Bush, I can see no clear path for the Court to rule against Padilla, and possibly Hamdi, as long as they decide to examine the merits, and not take the easy way out.