Hamdi

Hamdi is the U.S. citizen “captured” in Afghanistan; the U.S. government claims he is an “enemy combatant,” while Hamdi maintains that he was, in effect, an innocent in the wrong place at the wrong time, and he demands the right to challenge his detention and his status as an “enemy combatant” in court. Having now read through rather quickly the four separate opinions in Hamdi, the case turns out to represent a rather striking mix of views, breaking down roughly as follows (corrections may be forthcoming, and are welcome):

The controlling opinion by Justice O’Connor (joined by Rehnquist, Kennedy, and Breyer) clearly rebuffs the government’s position, but provides the stingiest, as it were, remedy compared to the next two opinions. O’Connor finds that the “AUMF” (the Authorization for Use of Military Force enacted after September 11 and prior to the attack on Afghanistan) authorized the detention of citizens in Hamdi’s situation (this probably means AUMF does not authorize the detention of Padilla, who was arrested in Chicago and then declared an “enemy combatant”—which means the Souter or Scalia opinions are more likely indicative of what would happen in his case). Yet Hamdi still retains a due process right to challenge his detention and his classification as an “enemy combatant.” But this entails balancing the due process interests of Hamdi against the opposing governmental interests. So while “the citizen’s right to be free from involuntary confinement by his own government without due process of law” is “fundamental” (24), it is, like so many of our fundamental rights, still fit to “hang in the balance” with countervailing government interests. Justice O’Connor then strikes the “balance” as follows:

First, “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker” (26). So far, so good.

Second, “the exigencies of the circumstances may demand that…enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict.” In particular, hearsay may be admissible “as the most reliable evidence” and (this is very odd, and unexplained) “the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided” (27). This is a concession to the government’s position, but still mandates far more by way of process than the government had suggested might be due.

Third, and most alarmingly, Justice O’Connor explicitly leaves open “the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal” (31).

Souter and Ginsburg join O’Connor et al. in the result (remand for proceedings consistent with the O’Connor opinion), but not the merits of the argument. They find that the government has no authorization for holding Hamdi at all, and therefore he should be freed.

Scalia and Stevens reach essentially the same conclusion, but for somewhat different reasons in an opinion by Justice Scalia. Justice Scalia’s analysis is straightforward: “Hamdi is entitled to a habeas descree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus.” Since Congress has not suspended the writ (Justice Scalia, surely correctly, says that AUMF is not a suspension of the writ), that leaves (1), which hasn’t happened, and which would, in any case, submit Hamdi’s case to the jurisdiction of the courts (and with far greater protections than provided for in Justice O’Connor’s opinion). Note that Scalia also says that while the Constitution limits the “suspension [of habeas corpus]…to cases of rebellion or invasion,” it is up to “Congress rather than this Court” to make that determination with respect to September 11 and subsequent events (26). One worrisome possibility is that there will be a move, in the wake of this decision, to suspend the writ. In any case, I will say this for Justice Scalia: unlike some originalists who are purely opportunistic (remember Bork when he was on the D.C. Circuit?), Justice Scalia generally retains loyalty to his theory of constitutional interpretation across a wide range of cases—which leads him to results that don’t always fit his “conservative” reputation.

Only Justice Thomas comes down squarely in favor of fascism, opining that Hamdi’s “detention falls squarely within the Federal Government’s war powers” and adding that “we lack the expertise and capacity to second-guess that decision” (1). “[T]he Government’s overriding interesting in protecting the Nation” justifies depriving Hamdi “of a serious [!] interest [i.e., his freedom], one actually protected by the Due Process Clause” (20). Substitute Reich for Nation, and see how familiar it all sounds. Someone less (newly!) sensitive to the feelings of delicate right-wingers might even say that this opinion solidifies Justice Thomas’s status on the “lunatic fringe” of the Court. But I would not say that, ever again. I have been duly chastened.

UPDATE: A more detailed analysis of the opinion from Michael Froomkin (Law, Miami) is here.