As is commonly the case, the Supreme Court has left most of its major decisions for the end of the term. This year, however there are a greater number of important cases, with more major consequences, than usual. Some will likely be decided today or tomorrow.
There are seven cases I'm watching with particular interest.
Freedom and Republican Government
1. Cheney v. U.S. District Court has to do with the Congress's powers to force disclosure by the Executive, in this case who attended Vice President's Cheney's secret meetings with oil executives in which they mapped out US energy policy. A finding for the Executive would advance the Royalist vision of the executive; a finding for Congress would preserve the status quo, or maybe eliminate some doubt about whether Congress really has the authority it has claimed for at least a generation. There are also many ways to split the baby. [Decided 6/24]
2. Ashcroft v. ACLU is a First Amendment challenge to the Child Online Protection Act. There's some justice on both sides, but were the court to rule that web publishers must require their readers to prove their age before being allowing them to view any web pages that might infringe the vague “harmful to minors” standard, it would transform the Internet into gated communities…or drive web sites abroad. Again, there are ways the court could punt, too, and I wouldn't be shocked by yet another remand in this torturous case. Unfortunately, the Supreme Court has a tendency to lose patience at some point with cases that bounce up and down and try to decide them. That could be ugly.
3. I've written previously about Hiibel v. 6th Judicial Dist. Court of Nevada, calling it a case to watch. I'm watching this one with particular interest, since it will have so much impact on any potential US law on national ID cards. [Decided 6/21]
The biggest cases, however, have to do with four wars: the War on Drugs, the War on Terror, the War in Afghanistan and the War in Iraq.
Of these cases, three will help define how decent a country we are. But one, the most important of all, will decide whether or not we are still a free country. Sound melodramatic? I wish it were.
4. If the US invades a foreign country, kidnaps a foreign national, drags him back to the US to try him on charges of aiding the murder of a US DEA agent, but it's all a ghastly mistake and he's acquitted for lack of evidence, can he sue for damages and false imprisonment? If the relevant statute applies to domestic conduct only, do we look to where the kidnaping happened (Mexico) or where it was planned (Washington) as the relevant place for deciding if the statute applies? Those are some of the questions in Sosa v. Alvarez-Machain and U.S. v. Alvarez-Machain. Another is the Royalist claim that Congress lacks the authority to make rules restricting the Executive Branch's kidnaping of foreigners abroad on the theory that this would infringe the President's foreign affairs powers, and harm the War on Terrorism.
5. Rasul v. Bush and Al Odah v. U.S put the decency and Presidential power issues in starker terms, as they challenge the claim that our government can create an anything-goes zone in Guantanamo Bay, free from any judicial interference or review—even a writ of habeas corpus—a writ which can only be suspended in wartime, and which has not been suspended since the Civil War. An underlying issue is the extent to which the US Navy station in Guantanamo is inside or outside US jurisdiction given that Cuba retains formal sovereignty—but not other power or control whatsoever so long as the US uses the territory for a naval base. Prior relevant posts on these cases in my Guantanamo section, especially these:
- Guantanamo: Our Collective Shame
- Even If US Courts Don't Have Jurisdiction Over Guantanamo, There Is No Recourse to Cuban Courts
- US Jurisdiction in Guantanamo — Some Complexities
- What Motivated the Cert Grant In Guantanamo Case? Linda Greenhouse Thinks She Knows
- Not As Hypothetical As I'd Like
- 'Senior Defense Official' Plans to Hold Guantanamo Detainees Pretty Much Forever
6. Then there's the odd case of Hamdi v. Rumsfeld. Hamdi is a US citizen captured in Afghanistan, some disputed distance from if not actually on the field of battle. Our government labeled him an “enemy combatant,” said he had neither the rights of a US citizen nor of a POW, and has him on ice in solitary, in a military prison. It has not charged him with a crime, and claims no duty to do so. Here there's no question about jurisdiction for the a writ of habeas corpus since Hamdi is now in the US. What's at issue is whether the government's uncorroborated statement that Hamdi was “affiliated with a Taliban military unit and received weapons training” (note: not even 'took up arms against the US'!) is unquestionable and final, or if Hamdi gets a day in court. Again, the case raises question about the extent of executive power in “wartime”—especially since the War on Terror is a “war” that likely has no ending point.
The Big One
I think all the cases above matter a great deal. A bad decision in any of them — and given this court one has to expect some bad decisions in some of them — will make this country less free, less self-governing, or less decent. But none of these would be fatal to our democracy. The harms Hiibel might do could be undone by legislation; Hamdi perhaps less so, but at least the untrammeled hunting license it would create would only apply to US citizens abroad in, one hopes, battlefield or near-battlefield conditions. But Padilla is different.
7. I don't think the public really understands how much is at stake in Rumsfeld v. Padilla. I've written about it many times, but only recently worked out that the issue is even graver than I previously understood.
The basic question in Padilla is very simple: can the federal government grab a citizen off the street and hold them in a military prison without charging them with a crime, without giving them a hearing or a trial, without access to lawyers, family, friends. And, can it do it indefinitely. If the answer is yes it can, then our citizenship is devalued to nothing better than that of the citizens of Argentina during their military dictatorship, a period in which thousands disappeared into military jails, many never to emerge.
Does that sound over-wrought, given there's only one person so far, and he hasn't by all accounts, been tortured (other than being confined in solitary with no prospect of emerging) or killed? I don't think so for two reasons.
First, we don't call them “precedents” for nothing. If we set the precedent that people can be grabbed off the street, next time Ashcroft, or some future Ashcroft, or some horrible cross between Nixon, John Adams and Burr, won't bother going through the civilian justice system at all (which is how Padilla's case got attention — he was first held as an ordinary criminal, and it was only when the government realized it didn't have the evidence to try him that they decided to reclassify him as an
enemy of the state illegal combatant, and put him in the brig). Next time, whenever that is, the victim will just vanish.
That's bad enough. But I don't think I understood how much was a stake until I read the Torture Memos. Those memos claim the right to legally inflict hideous intentional pain — what I and most people would call torture — on enemy combatants. That's right—on people whom this administration considers equivalent to Padilla. So the US government is not only asserting the right to Disappear people, but to torture them in secret as well.
It seems government lawyers have been having cold feet about the likelihood that the Supreme Court will endorse this argument. (Law clerks blabbing? Lawyers realizing how evil their arguments are? Cynics thinking the Justices will be influenced by the Iraq torture headlines?) And well they should, as it is despicable. It deserves to lose 9-0, although no one I know is bold enough to predict that will actually happen, myself included. Yet any vote in favor of the government's arguments is a vote for authoritarian government at best, and a blow to our freedom greater than anything even all the other cases above together could manage.
Were Padilla to lose, it would blow a hole in the Constitution, one that would take a constitutional amendment to fix. I am confident the Supreme Court will not take us there, but if I'm wrong about that, it's the start of a long, long fight.