August 07, 2004

Hamdi v. Rumsfeld

SCOTUS Asserts Power To Allow Torture, Detainment
"Nobody Overrules The Constitution Without Our Acquiescence!" Justices Declare

Anyway, that's an exaggeration, but read the decision. It's total idiocy. The Court essentially found that it has the power of oversight on these matters, but that they aren't going to exercise that oversight in any meaningful way. They found a few things, specifically.

FIRST, the Court held that it had jurisdiction in these matters. That's normally quite routine, but in this case they were asserting that the judiciary had any jurisdiction in matters of overseas conflict and during war-time. Yes, apparently some people think the executive and legislative have full authority during such times of crisis and that the courts should just go their own merry little way. What's worse is the Fourth Circuit of Appeals actually found that separation of powers forced them to abstain from the issue. That's like a Victorian woman saying to her husband she knows nothing of politics or business or other such rowdy affairs, and she glides off gracefully to attend to her appearance. Total garbage.

The SCOTUS has jurisdiction because the Constitution applies. If the Constitution didn't apply (or through act of Congress pursuant to the Constitution 3.2.2) then the courts would not have jurisdiction. It does, so they did. End of freakin' story. Imagine if the President or judges could just decide they were above impeachment, or the Congress decided that it didn't need 2/3rds to override a veto. We have a vital system of checks and balances - and if anything matters of war, firearms, detainment and torture are MORE important for judicial oversight, not less.

This part of the case was found 8-1, everybody but Thomas thought we had a role. I thought Thomas was supposed to be a more libertarian Justice, but apparently the issue of LIBERTY didn't come up that day.

SECOND, a plurality found that Congress had authorized the detainment when it issued its resolution authorizing force in September, 2001. While they found that the executive alone cannot authorize the detainment, the Congress can. Further, although indefinite interrogation is not allowed, they did allow indefinite detention. Indefinite detention is allowed. As long as active fighting continues in Afghanistan, Hamdi can be detained. Considering the Russians spent about a decade fighting the Afghans, and the penchant for the Afghans to go guerrilla in the mountains, we could be looking at a long process. Sixty years after World War II we're still in Germany.

Of course, even if it only lasted a few more months, it'd still be unconstitutional. He's an American citizen, Muslim or not, Arab or not, and he has rights.

The most absurd part of the ruling, of course, is that O'Connor (and Rehnquist, Kennedy and Breyer) ruled that Hamdi had the right to appeal his status but effectively ignored two facts: a) he was denied counsel and held incommunicado for months or years after his detainment and b) the government NEVER released the full criteria for being declared an enemy combatant.

What was interesting is that: Thomas went off into anti-Constitution land; Souter and Ginsburg found that the detainment was unlawful and Hamdi should be released to a normal criminal process; O'Connor, Rehnquist, Kennedy and Breyer found that they had jurisdiction but then refused to do anything with it; Scalia and Stevens found that the detentions were unconstitutional without Congressional suspension of habeas corpus. The most rightward and most leftward (except maybe Ginsburg) teamed up in the strongest dissent. Very interesting to see Scalia and Stevens on the same side of any decision, especially such a huge issue.

Back on subject, now. This is why the decision was poorly decided:

- How can he challenge a status that is never made clear to him? The charges aren't even being made clear to him if they don't list all of the acts or crimes he committed to be declared an enemy combatant.

- He cannot be declared an enemy combatant and held in detention WITHOUT TRIAL, that fundamentally violates his 5th and 14th Amendment rights. The enemy combatant classification is unlawful, he has to be tried before it can affect his liberty (through detention).

- An American citizen cannot be held incommunicado for months or years WITHOUT BEING CHARGED and without an attorney.

Basically just trial rights. They have to make clear the charges, allow him access to his attorney, and allow him a speedy, public trial by an impartial jury. Basic trial protections, all denied to him. The Supreme Court and White House are side-stepping the issue, claiming that he's an enemy combatant so they can hold onto him until the end of hostilities. In that case, he'd have to go to trial to determine if he is in fact an enemy combatant.

Rather than going to court and losing, they're holding Hamdi indefinitely. That's wrong, that's unconstitutional, that's un-free. They should release him into a normal prison under normal circumstances, and go through the normal indictment and trial processes. He has rights, and they must be respected.


Anonymous Anonymous said...

Seems like the Bush Justice Department is doing something similar in the Jose Padilla case, jailed without charges and without access to a lawyer. I'm not a lawyer, but i'd say it takes his liberty without due process which violates the 5th amendment. Also the 6th amendment says the accused is entitled to a speedy trial by an impartial jury. Where is the speedy trial or the jury? The justice dept tried to interfere with Habeaus Corpus too. Padilla is a bad actor with a long criminal record but he's an American citizen and was apprehended in the U.S. If they can do that to him what stops them from doing it to anyone? If the administration gets away with this it will be one more nail in the coffin of freedom.

September 18, 2004 3:30 PM  
Blogger senatortombstone said...

While I understand the principle here, the violation of civil liberties; and I know that you're not defending the individuals who are being accused. I still believe that if their detention is in the best interest of national security they should continued to be contained, rights be damned. Everyone's right not to be blown up by a terrorist supercedes the rights of Padilla and Hamdi to commit terrorism.

December 23, 2004 11:51 AM  

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