Hamdi, Padilla, and the Detention Cases

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.


18 Comments so far. Comments are closed.
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  16. I’m pretty certain the brainpower’s come up with a compromise, but a certain guy named Ashcroft isn’t listening.


  17. Mark,

    Thanks. The interesting thing here is that “due process” need not mean that Padilla is handed over to the civilian courts in a complete sense. Due process can be complied with by creating military tribunals with sufficiently accountable process that the SC could later say “yes, this is in compliance with the fifth and sixth amendments.” That has been done before — in the 1991 Gulf War as well as previous conflicts. Courts-martial, for example, are non-civilian courts, but they follow a due process model which has no more history of bias and discrimination than do our civil courts. :)

    What limits us isn’t the constitution — it’s our creativity in coming up with a compliant solution that works. A very interesting compromise would be for the SC to direct the military to keep Padilla in custody if he poses a threat, but allow in-custody access to counsel, with a schedule for a real trial. If no charges can really be filed, then the military and Executive branch need to ask Congress for a set of laws which will allow extraordinary exceptions to the rules, perhaps for limited periods of high danger. Bruce Ackerman has an excellent article in the April issue of the Yale Law Journal about this exact issue — the article is called “The Emergency Constitution” and is an extremely sensible look at how to do this indefinitely without destroying civil rights permanently. I can’t give you a link because it’s not freely available. If you have a friend with WestLaw or HighBeam access it’s available in those databases.

    It’s the job of Congress to craft a statute for detainment which provides both for due process and a reasonable ability to gather intelligence. It’s even possible to create a category of crime which allows for detainment during the duration of a conflict upon presentation of solid evidence of planning for the commission of a terrorist act — but which requires release or civil review after the end of the conflict. I’m just thinking off the top of my head. All of this is possible because due process is really just a framework. The Article III civil court is really only just one way that Congress has created for complying with due process. The military has another, and others could be created for handling emergency situations.

    We’re in hot water here not because there aren’t ways to comply with due process without letting dangerous people walk free, but because the Executive branch doesn’t have the constitutional right to simply make up a detention plan without the involvement of Congress. And we haven’t seen our smartest folks putting much brainpower into figuring out a good compromise.

  18. Very thoughtful post, and you’ve even convinced me. Despite the security implications of what ‘due process’ may entail in Padilla’s case (he could walk away and then disappear), I find the loss of civil liberty to ALL to be just as disturbing, maybe more. Hopefully, they’ll find an effective solution in the Padilla case that doesn’t completely usurp the Constitution.

    I tend to get pretty bent out of shape about terrorism and security requirements – mostly due to the nature of my work.

    Anyway, thanks again for the level-headed redirect.