Tuesday, June 29, 2004

"A state of war is not a blank check"

In a sign that perhaps all is not lost in America, the Supreme Court has taken a firm line on human rights, ruling that both Yasser Hamdi and the Guantanamo detainees enjoy the full protection of the US courts and may challenge their detention.

Skimming the Hamdi decision, it's striking how strongly the courts oppose the government's position. Eight of the nine justices argued that Hamdi was entitled to counsel and due process, though they disagreed on exactly how and on whether his detention was legal (the plurality believed that it was, but that it must be able to be challenged; Justice Scalia took a hard line, arguing that the government must release Hamdi, suspend Habeas Corpus or charge him with treason). The only justice to dissent from this overwhelming view was (of course) Clarence Thomas, who buys into the administration's claims of un-reviewable war powers hook, line, and sinker. Fortunately, the majority of the court recognised the danger in such thinking - though they avoided tackling it head on, and instead decided the case on other grounds.

Supreme Court decisions on human rights usually contain some strong statements on the matter, and this one is no exception. The core of the court's ruling lies in these two sentences:

We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law


[A] state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.

The Guantanamo case is less interesting, being primarily concerned with the question of whether the US has legal jurisdiction over the base there (it does), and some previous precedents relating to captured enemy soldiers (which were found not to apply). Like Hamdi, they will get to challenge the factual basis for their detention in court, and force the government to justify it to the satisfaction of a judge. Hopefully that means that a few more taxi-drivers will soon be released.

A third decision was issued in the case of Jose Padilla, finding that his appeal for Habeas Corpus was invalid on jurisdictional grounds. Some have dismissed this as cowardice by the court, but its not really. The issue has been effectively decided by the Hamdi decision, and when Padilla's lawyers refile in the appropriate jurisdiction, there's little question that he'll also get his day in court.

Update: KiwiPundit's comments are here.