E-Mail This Article to a Friend The enemy within (continued)

The outcomes in Hamdi and Padilla are even more worrisome. In these two cases, the court does offer clues as to how the lower federal courts might exercise their oversight powers with regard to enemy-combatant hearings involving US citizens held in this country — and the implications are not comforting.

The court did not actually decide Padilla, concluding instead that the plaintiff should have brought his petition in the federal court in South Carolina, where he had been transferred from New York. This highly technical ruling permits the government to choose the judicial forum most favorable to it, since the Fourth Circuit Court of Appeals, which has jurisdiction over South Carolina, is the most pro-government of all the federal appeals courts. To benefit from the Fourth Circuit’s inclinations, the administration and the military need only move prisoners to a facility in South Carolina; in fact, they could probably even evade court review altogether by constantly moving a prisoner from one judicial district to another.

The court, however, did decide Hamdi. Here, the majority ruled that a citizen in Hamdi’s position, designated an "enemy combatant," had the constitutional right to contest that designation and seek release. So far, so good.

But then Justice Sandra Day O’Connor, writing for the majority, went on to describe how Hamdi could challenge that designation. Because of the exigencies of the war on terror, such prisoners, said the court, are not entitled to the same opportunity as ordinary litigants in federal court to prove their innocence — or, more properly, to challenge their designation as enemy combatants. Rather, they are entitled merely to a limited hearing before some kind of neutral tribunal, to show that they were wrongly apprehended and are being erroneously held. Such a hearing need not observe the normal evidentiary rules employed by our judicial system, under which the government would have to shoulder a heavy burden of proof. Instead, it would be okay, ruled the majority, to indulge in a presumption in favor of the government, and thus to impose the heaviest burden on the prisoner — who, remember, is incarcerated and usually without any resources — to prove that he’s not an enemy. Worse, the hearing does not even have to be held before a civilian court: "There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal," said the majority. This one sentence alone could render Hamdi’s Supreme Court victory wholly illusory.

This questionable "victory" for liberty was excoriated by Justice Antonin Scalia, the court’s archconservative; interestingly, he was joined by Stevens, arguably the court’s most liberal member. Examining the historic roots of habeas corpus, which date back to 13th-century England, Scalia argued eloquently that the administration had only three choices: either charge Hamdi with a crime (Scalia suggested treason, the offense of a citizen betraying his country in time of war) and give him a jury trial; convince Congress to legislate a suspension of the writ of habeas corpus, an extreme action taken only once in American history, during the Civil War; or let him go. Scalia understood that the majority’s decision was potentially a loss rather than a victory for liberty: "If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court." The erosion was sufficiently silent to fool the news media, but not Scalia.

In another dissent, Justice David Souter, writing for himself and Justice Ruth Bader Ginsburg, took an equally firm position. Warning against a repetition of the circumstances that resulted in the detention and relocation of citizens and noncitizens of Japanese origin from the West Coast during World War II (see "Crossing the Threshold," News and Features, March 5), they concluded that the government had no choice, based on the current state of the evidence, but to release Hamdi. However, because of the need to achieve a majority vote, Souter and Ginsburg partly concurred in O’Connor’s tepid result — and thus threw her their support — because otherwise Hamdi, lacking a majority, would get no hearing at all. The O’Connor compromise thus commanded six out of nine votes, two of them unenthusiastic, with Scalia and Stevens opposing the government in a separate opinion. Only one justice, Clarence Thomas, was in favor of authorizing the government to lock ’em up and throw away the key.

So it’s true that liberty achieved a tenuous toehold on June 28. But the Supreme Court’s rulings, taken together, have more the feel of a defensive strike against the swipes taken by the Bush administration than a positive assertion of civil liberties. The court unequivocally demonstrated its institutional authority as a co-equal branch of government and made crystal clear that it will not tolerate disrespect for its oversight responsibilities; but what it did with its right hand, it virtually canceled with its left by leaving the practical exercise of this oversight ambiguous. Thus the power of the court’s lunge on its own behalf stands in striking contrast to the wishy-washiness with which it asserted citizens’ — i.e., liberty’s — interests. For that reason, the rights afforded those people designated enemy combatants will be worked out during long and complex future proceedings, effectively in the hands of the Fourth Circuit — the most pro-government jursdiction in the land.

Harvey A. Silverglate can be reached at has@harveysilverglate.com. Dan Poulson assisted with this piece.