SCOTUS and War on Terror

Haven't had a chance to read all the opinions today (Hamdi, Padilla, and Rasul total 190 pages!), but here's a synopsis:

Hamdi--SCOTUS held that US citizen captured in Afghanistan and denoted as an enemy combatant can be held without charge, but he can challenge his enemy combatant status in federal court; Scalia (with Stevens!) dissents, saying that habeas corpus is a fundamental right in criminal law--if Hamdi's a traitor, then try him as a traitor. Reverse and remand.

Padilla--SCOTUS held that US citizen captured on US soil can bring habeas action only against immediate military commander/jailer (NOT Rumsfeld) and in the District Court of territorial jurisdiction (that is, one near the Norfolk or Charleston brigs); Dissenters went to the merits of the case, finding that Padilla can't be detained under existing Congressional mandate. Reverse and remand.

Rasul--SCOTUS held that Guantanamo detainees can challenge their detention in US District Court under 28 USC 2241; Dissent by Scalia bemoans the wide decision of the majority which allows the Guantanamo detainees to seek habeas in any District Court (forum shop), not just that of territorial jurisdiction (see Padilla, supra). Reverse and remand.


JPF Analysis: Kind of how I thought they would turn out, although Scalia's forceful (and intelligent) dissent in Hamdi arguing FOR habeas or a trial was surprising.

I happen to think that Article II and Eisentrager (German soldiers captured in WWII not able to challenge) allow a detention of non-citizens for intelligence purposes in a national security emergenc situation.

Furthermore, I saw a very significant wrinkle with the Hamdi matter that I'm not surprised SCOTUS veered away from; Supreme Court jurisprudence requires them to avoid a Constitutional issue if it can be resolved by statutory interpretation. That being said, Hamdi could have made a wrinkle in the Citizenship Clause of the 14tn Amendment "natural born citizen" language (Hamdi was born in New Orleans to Saudi parents here for short term engineering employment; Hamdi left at age 6 months or so, never to return until after capture).

I can live with the rulings, as they will not really affect much, but it is a big blow to the administration's intelligence gathering capabilities. It is also a crimp on the President's Article II foreign affirs power (see Youngstown Sheet & Tube v. Sawyer), especially in a time of national emergency.

More as details develop...