Not often do I read something on Southern Appeal with which I agree completely, but William Watkins post on yesterday’s decisions is right on the money. My reaction to the decisions, like his, is decidedly mixed, but on the whole I was happy to see that most of the justices were not willing to allow the administration to do whatever it wanted regardless of constitutional protections just because there’s a war going on.
I’m a bit disappointed in the Padilla decision because it’s one of those typical Rehnquist-type decisions that rely on the most irrelevant technicalities rather than on the real issue. In short, they ruled that in filing a suit for unlawful detention, the only one who could actually be sued is the person actually doing the detention, in this case the commander of the brig in which he is detained. The suit was filed in New York, but he is being held in a naval brig in South Carolina. This strikes me as a rather silly distinction, since the commander of the naval brig is acting on direct orders of the Secretary of Defense and the President (and in this case, I mean direct orders). The brig commander did not make the policy or the decision, she just happened to be the one in charge of the prison that they chose to transfer him to. So why not get to the real issue, which is not venue but habeas corpus?
Still, I am encouraged by the language used by the justices in both cases, and by the fact that 4 of the justices wanted to rule on the Padilla case on the merits and came out strongly against the White House on that matter. Stevens’ dissenting opinion put it quite bluntly:
Whether respondent is entitled to immediate release is a question that reasonable jurists may answer in different ways. There is, however, only one possible answer to the question whether he is entitled to a hearing on the justification for his detention.
At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.
Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.
Combine that with Scalia’s position in the Hamdi case that the government may not detain indefinitely without charges unless there is a specific suspension of habeas corpus issued by Congress, and that such a suspension is justified only if there are no functioning courts, and it’s clear that there are at least 5 votes on the court for Padilla when the case makes its way back up to the Court. Hopefully the administration will come to its senses based upon those decisions, realize they’re going to lose the next round, and either charge the man with something or release him.