Monday, June 28, 2004

End of a grand experiment

“The Supreme Court ruled narrowly Monday that Congress gave President Bush the power to hold an American citizen without charges or trial[.]”

Sure, they said that we do have recourse to the courts, which is a sort of victory. But anyone who can be held indefinitely by his government without charges or trial is not a citizen as the court would have it. We are now American subjects, and the experiment begun by the founding fathers that Scalia et al. claim to so revere is, today, over.

Update: Maybe, I hope, AP’s account (quoted above) is not conclusive. Reuters says this:

The Supreme Court ruled Monday that an American captured overseas in President Bush’s war on terrorism cannot be held indefinitely in a U.S. military jail without a chance to contest the detention.


Too much spin in these reports to know what they mean.

Update II: The consensus of those who took the time to read the actual decisions, rather than the AP’s early reports, is that there is no cause to freak out. Click through for a sampling.

Michael Froomkin

In summary, eight members of the Court think Hamdi (and, by implication, Padilla) is at least entitled to a hearing, with four saying he should be sprung straight away, albeit two on statutory and two on constitutional grounds.

Jack Balkin

In essence, the Court has said in these cases: don’t tell us that we are irrelevant. The flip side of that demand is that if the Administration now goes through the motions of justifying its decisions before a court, courts are much more likely to let it do what it likes. In that sense, the decisions in Hamdi and Rasul cannot be understood to be complete victories for civil liberties. But they are better than the alternatives.

Dahlia Lithwick

For some reason the early headlines perplexingly read: “U.S. Supreme Court Rules for Bush Administration.” I don’t know what part of the decisions in Hamdi and Guantanamo are allegedly “victories” for the administration. Certainly I suppose it’s nice news for the president that he is theoretically allowed to detain some enemy combatants under a limited set of circumstances. But the core claim put forth in these cases by the administration—that such decisions are fundamentally unreviewable by any court—was utterly decimated today.

And contrast the AP lede now (7:30 PM CST) with the one from a few hours ago that caused me to flip my lid:

The Supreme Court ruled Monday that the war on terrorism does not give the government a “blank check” to hold a U.S. citizen and foreign-born terror suspects in legal limbo, a forceful denunciation of Bush administration tactics since the Sept. 11 attacks.

First draft of history, indeed.

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