“What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” And the answer to that question is “affirmative.”
So Guantanamo is not like the Antarctic, a place with no law (cf. Smith v. US). I strongly think this is the right result, but I'm not entirely happy with how the majority got there.
Aaron Swartz, the man who brought blogdom NYT permalinks and cool tools for finding them, presents, When can I keep an enemy combatant?.
This is a lot easier to follow than the pure text kind of analysis.
Now that I've sorta figured out what I think, other takes on today's decisions:
Like Gaul—or, more the the point, gall—the detainee mess is divided into three parts. One division is the obvious one: Hamdi (PDF, 822kb), Padilla (PDF, 517kb), and Rasul (PDF, 520kb). That's certainly the way the three decisions will be divided in the media. However, there is a much more logical and important division into three parts: civil procedure, government power, and military necessity. Just to be different, that's how I'm dividing things. I also think it gives some interesting perspectives on exactly what was going on.
Lots at SCOTUS Blog
Greg Goelzhauser, Did Congress authorize indefinite detention?
What happens to Hamdi himself — and what sort of rules exist for future cases of this sort — will now be heavily dependent on what kind of procedure is implemented below. Four members of the Court explicitly left the door open to military tribunals (see p. 31), and Thomas could probably be relied upon to provide a fifth vote. But the government is on notice that four members of the Court — and possibly more, depending on the views of those who joined O'Connor's opinion — are not going to be deferential.
Legal Theory Blog has a round-up of the votes and other comments.
Update: Read Balkin
Meanwhile, back at torture… USATODAY.com – Memo lists acceptable 'aggressive' interrogation methods. In an as yet-unreleased August 2002 legal memo, the administration approved the CIA repeatedly dunking detainees under water, for periods long enough to make them think they might drown, in order to make them talk:
The techniques discussed were “aggressive” but “lawful,” the former official said. A current Justice official who knows the memo's contents said it specifically authorized the CIA to use “waterboarding,” in which a prisoner is made to believe he is suffocating.
…
Initially, the Office of Legal Counsel was assigned the task of approving specific interrogation techniques, but high-ranking Justice Department officials intercepted the CIA request, and the matter was handled by top officials in the deputy attorney general's office and Justice's criminal division.
…
White House counsel Alberto Gonzales said the thrust of the publicly released documents was that President Bush insisted on humane treatment of all prisoners, even though legal opinions from Justice and the Pentagon said there was wide latitude in wartime within the limits of anti-torture laws and treaties.
Well if the way Bush governs is “compassionate” I guess it is no less Orwellian to call repeated near-drowning “humane”.
A vote for Bush is a vote for waterboarding.
It's safe to say that today's trifecta of opinions wasn't predicted by anyone. Bottom line: It's still a free country. And this is still a formalist court, which (like anti-formalism) has its virtues and vices.
Full texts of opinions:
Although Padilla seemed to raise the most critical issues, the court ducked them, so (at first glance) by far the most important opinion of the Hamdi-Padilla-Guantanamo trilogy turned out to be Hamdi. Click “more” for a long, first-impressions, post on Hamdi. I'll post subsequently, and more briefly, about the other two. Updated
Padilla loses on what will to many seem to be a technicality: his lawyer filed in New York when he should have filed in Charleston, SC. The majority does not reach the merits.
That is consistent with long-standing rules of habeas jurisdiction, but it's a darn shame the Court couldn't find it in itself to go the merits when they are so clear; the majoritydoesn't consider this case exceptional enough for an exception to the “custodian” rule, while the dissenters do.
Two of the five justices in the majority write a concurrence noting that if the government had been moving the detainee around to make jurisdiction hard, they would make an exception, but that this isn't that case — he's been stationary.
The appropriate district court will now have consider Padillia's case in light of the ruling in Hamdi, which ought to put him in a better position than he was the last time his case went to district court.
Four justices dissent, reaching the merits. More when I've read it all.
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