June 2004
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Day June 28, 2004

“Flooding the zone”: is the early handover of sovereignty meant to drown out the Supreme Court?

I was so interested in the Court’s trifecta of enemy combatant opinions this morning that I didn’t even think about the fact that sovereignty was handed over to Iraq two days early. But Jack Balkin brought up the connection today:

The Bush Administration handed sovereignty over to the Iraqi government two days early, on the same day that the Supreme Court was about to announce whether it supported key aspects of the President’s policies. By moving the handover forward, the Administration not only avoided security problems, it also upstaged the Supreme Court.

Conicidence? I think not. It’s called flooding the zone, folks.

Not having the “insider” experience, I have no way to tell how credible such notions are. But given how carefully the news cycle is managed by every White House, not just the current one, I guess Balkin’s claim is plausible.

If it is, it’s too bad, because having read all the opinions now….the Court kicked some power-grabbing, liberty-trampling Administration ass today. Anytime I find myself cheering while reading a Scalia opinion, you know the world’s gone topsy-turvy.

Civil Liberties Upheld in Enemy Combatant Cases

The Court issued opinions in the “Enemy Combatant” cases today, and the outcome wasn’t what I expected. Nevertheless, at first reading the outcomes seem good. The Court issued a substantive opinion in the case of Hamdi v. Rumsfeld, agreed that Guantanamo detainees have a right to habeas proceedings in Rasul v. Bush, and took the “jurisdiction” route in Padilla v. Rumsfeld.

In the case of Yaser Hamdi, Justice O’Connor writes:

We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

On the face of it, the Hamdi decision would seem to uphold the Commander-in-Chief’s ability to detain enemy combatants, but require that whenever such detainees are citizens and held in the United States, due process will apply. I’ll be interested in reading more knowledgeable analysis of the decision, but it would seem that the Court is cognizant of the dangers involved in unchecked Executive power, and willing to place limits while still allowing Executive freedom during war. I am encouraged, however, by O’Connor’s recognition of the terrible dangers involved in trampling due process:

Striking the proper constitutional balance here is of great importance to the Nation during this period of on-going combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.

O’Connor goes on to say that “neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance…” and goes on to reject the government’s assertion that separation of powers mandates a limited role for the courts:

We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens (Youngstown Sheet & Tube). Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.

Interestingly, Scalia’s dissent rejects even the compromise proposed by the majority: either you charge someone with a crime, or you suspend the writ of habeas corpus. Congress did not suspend the writ in the Authorization for Use of Military Force, as everyone agrees. Scalia believes that this means criminal prosecution is the only avenue constitutionally open to the Executive branch. He disagrees with the majority position, but only because he believes Hamdi must be charged with a crime or released.

The Hamdi precedent may help Padilla in further proceedings, since one can easily surmise that any conclusions reached in Hamdi would apply to Padilla given proper jurisdiction and venue for the hearing.

The compromise position in Hamdi isn’t an unqualified success for defenders of civil liberties, as Scalia’s dissent would be if it were the majority opinion. Nonetheless, all three “Enemy Combatant” cases would seem to represent a strong statement by the Court about civil liberties, the central place of habeas corpus in protecting due process, and the limits to Executive power. It will be interesting to see how constitutional scholars interpret the rulings, however, since I’m just an interested amateur.