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This Associated Press story is printed in both the New York Times and the Wall St Journal (subscription required).
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Supreme Court Partially Sides With Bush on American Detainee Case
By THE ASSOCIATED PRESS
WASHINGTON -- The Supreme Court ruled narrowly Monday that Congress gave President Bush the power to hold an American citizen without charges or trial, but said the detainee can challenge his treatment in court.
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"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."
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According to WSJ:
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The court ruled similarly in the case of about 600 foreign-born men held indefinitely at a U.S. Navy prison at Guantanamo Bay, Cuba. The men can use American courts to contest their captivity and treatment, the high court said.
The Supreme Court sidestepped a third major terrorism case, ruling that a lawsuit filed on behalf of detainee Jose Padilla improperly named Defense Secretary Donald H. Rumsfeld instead of the much lower-level military officer in charge of the Navy brig in South Carolina where Mr. Padilla has been held for more than two years.
Mr. Padilla must refile a lawsuit challenging his detention in a lower court.
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Most importantly, WSJ reports who voted for what:
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She [Justice O'Connor] was joined by Chief Justice William H. Rehnquist and justices Stephen Breyer and Anthony Kennedy in her view that Congress had authorized detentions such as Mr. 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 Mr. 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 Mr. Hamdi's detention improper. Still, they joined Justice O'Connor and the others to say that Mr. Hamdi, and by extension others who may be in his position, are entitled to their day in court.
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In a series of decisions, it appears almost certain that Justice O'Conner is the swing vote, the center of the Court.
This Court is apparently unwilling to support a liberally-construed Constitution, unlike the Warren Court. On the other hand, it is not yet willing to submit to the revanchist conservatives led by Justice Scalia and his disciple Justice Thomas. Since liberals are disorganized, they avoid a fight, as in the Elk Grove v Newdow decision.
The most common theme seems to be reliance on procedural justice to assure fair and equitable results. This is a Court reluctant to spell out results. Thus, we have the Solomonic half a baby. In this case, Habeus Corpus is upheld, except that anyone can be grabbed without charges, without trial, and held more or less indefinitely.
Justices Scalia, Rehnquist and Thomas, usually supported by Kennedy, form a solid ultra-conservative block, led by Scalia. If Rehnquist retires during a Republican Administration, it would appear Scalia is most likely to be appointed Chief Justice.
The "liberal" Justices are splintered, although most often Justices Ginsberg, Souter and Stevens vote together. Justice Breyer, a Clinton appointee, sometimes votes with the conservatives.
Justice O'Conner is thought to be considering retirement. On the other hand, she has made herself more visible lately. The Court's decisions could change in unpredictable ways, if she retires.
June 28, 2004
Last update: 11/02/2007
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