Balkinization: Hamdi can be held as illegal combatant but must have access to courts

Hamdi can be held as illegal combatant but must have access to courts

Justice O'Connor wrote the majority opinion. More details as they become available.

The Supreme Court upheld the President's power to detain unlawful combantants because Congress authorized it, but has upheld a basic right of access to courts to challenge the legality of detentions ordered by the President.

That's very good news.

The Padilla case has been sent back to the courts without a decision on the merits. That means that Hamdi is the key precedent.

Justice O'Connor wrote the plurality opinion, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer. She held that Congress authorized the President to detain enemy combatants, including American citizens, but that citizens have the Due Process right to access to courts to test the legality of their detention. Justices Souter and Ginsburg concurred in the judgment, arguing that Hamdi's dentention was illegal, but specifically agreeing with the plurality (in order to create a majority holding for the case)that Hamdi had a Due Process right of access to the courts to challenge the legality of his detention. [from CNN]:

The administration had fought any suggestion that Hamdi or another U.S.-born terrorism suspect could go to court, saying that such a legal fight posed a threat to the president's power to wage war as he sees fit.
"We have no reason to doubt that courts, faced with these sensitive matters, will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns," Justice Sandra Day O'Connor wrote for the court.
O'Connor said that Hamdi "unquestionably has the right to access to counsel." . . .
O'Connor said the court has "made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
She was joined by Chief Justice William H. Rehnquist and Justice Stephen Breyer in her view that Congress had authorized detentions such as Hamdi's in what she called very limited circumstances,
Congress voted shortly after the Sept. 11 attacks to give the president significant authority to pursue terrorists, but Hamdi's lawyers said that authority did not extend to the indefinite detention of an American citizen without charges or trial.
Two other justices, David H. Souter and Ruth Bader Ginsburg, would have gone further and declared Hamdi's detention improper. Still, they joined O'Connor and the others to say that Hamdi, and by extension others who may be in his position, are entitled to their day in court.

UPDATE: More on the Hamdi and Padilla cases here.

Posted 10:34 AM by JB [link]

Comments:

I've only had a chance to glance at the opinions, but my favorite line, to this point, is that of Justice Stevens in Padilla: "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." I see this as an allusion to Bush v. Gore, saying, in effect, "We may have put you here, but don't think you've got carte blanche." These decisions, it seems to me, send a strong statement that the Court is looking to restore some lost credibility in the wake of the 2000 election. I'll reserve judgment until I've had a chance to review the opinions in detail, but I'd say the Court took a big step in that direction.

Dan Ray
Asst Prof
Eastern Michigan University

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