If a lawyer is going to have a blog, then the terrorism cases are what I should be writing about. Unfortunately, I don’t have time just this second. So instead, I will give it short shrift and let my feelings ooze from the text.
Let me get this straight:
The Supremes decided in Rasul v. Bush that a foreign national detained at the Guantanamo naval base is entitled to habeas relief as if he were being held in the United States itself. Since Gitmo is, for all intents and purposes, a permanent U.S. facility this was the only reasonable decision. Still, that didn’t prevent a 5-1-3 vote. Of course, any hopes that this right would be immediately meaningful were dashed when the decision in Hamdi came out. (Negative points for the majority for a confusing and unnecessarily complicated job of distinguishing the Eisentrager precedent. A better opinion would have made the dissent look foolish instead of merely wrong.)
In Hamdi v. Rumsfeld the Court decided that a U.S. Citizen captured abroad and held in the U.S. as an enemy combatant, the detainee can protest the fact of his designation as an enemy combatant (but not any specific military charges) in a proceeding where (a) hearsay is admissible and (b) the government gets all presumptions. Interesting notion of due process. You don’t get charged with a crime and the “evidence” against you actually requires scare quotes. (Bonus points to Scalia and Stevens for being the only Justices to get this right and holding that actual charges must be brought if Hamdi is to be detained. Serious negative points to Thomas for believing that war justifies the creation of martial law.)
Finally, and most offensively, the Supremes committed the most egregious punt of the term. After punting on the Pledge of Allegiance and Energy Task Force cases, the biggest shank off of the Court’s foot came today in Rumsfeld v. Padilla. Instead of answering the question concerning the liberty of all Americans within our nation’s borders, the Court chose to dismiss the case on obscure venue grounds. Yes, Padilla can refile in South Carolina. In the meantime, he remains in prison without any charges and without any recourse. And for all conspiracy theorists out there, all of the Republicans (unless people still want to argue that Souter is a Republican) voted to decide this case in such a way as to make it unlikely to be resolved before the election.
What a bunch of fucking pussies.