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.
Of course, Padilla has been tortured. The only question is what degree of torture has been applied. Why else would the government have barred his lawyer from asking him if he’d been tortured?
Pingback: The Importance of...
Hiibel was decided today – He lost 5-4, police CAN request id’s
“Does that sound over-wrought, given theres only one person so far, and he hasnt by all accounts, been tortured (other than being confined in solitary with no prospect of emerging) or killed?”
Yes. In addition the analysis lacks details regarding why Padilla was picked up in the first place. Padilla is no political dissident, spy, or common criminal. He was very likely involved in a dirty bomb plot.
Secondly, why would there be a threat to our liberty if Padilla loses? If as you imply, our leaders were ever moraly capable of using such a power against political opponents, why would they, when safer options are available? Why detain someone, when you can simply just make them disappear in a secret CIA prison? According to the “news” stories appearing on this site, a sophisticated secret prison network already exists and is used frequently.
This begs the question…why didn’t the White House just pressure Justice to release Padilla, and then have him “disappear”? Why take the political risk of detaining him in this manner?
The answer, to anyone with an ounce of common sense, it that our leaders are not as corrupt as you would have your readers believe. Stated another way, the sky is not falling.
“The answer, to anyone with an ounce of common sense, it that our leaders are not as corrupt as you would have your readers believe.”
Have you ever heard of the concept of “the rule of law, not of men”? America is based on the concept that our society will be governed according to a set of just laws and not based on the whims – or even on the well-considered ideas – of individuals. Accordingly, we elect representatives who have the duty, among certain other functions, of writing and enacting the legislation that we live by. Our part as citizens is to vote for the representatives who we feel will be most likely to enact legislation that we ourselves think is just. Further, our part also consists of defending any legislation that is enacted to the extent that it conforms to what we think is right. If we agree with a particular law, then we accept it; if not, then we lobby in various ways, through our representatives, to get it changed. We do NOT merely acceed to the wishes of any particular person in the government.
Thus, I ask you, would you be willing to support and defend of piece of legislation that said something to the effect of “The President of the United States shall have the lawful right to indefinitely imprison any citizen of the United States, without charge, as long as said President has declared them to be an enemy combatant”? I certainly would not.
Now, if the Supreme Court rules against Padilla, that does not, of course, mean that any such legislation will ever be enacted “on the books” but it will give the government a free hand to imprison people on the say so of the President. We will then, in effect, be living in a country based in great part on the rule of men and not of law. And that is not the American way, at least not yet.