The worst decision since Dred Scott was Flood vs. Kuhn. Everybody knows that.

Just for the record, I had my own set of excerpts from Scalia's brilliant dissent here. I thoroughly agreed with him on this one, which, for me also, is a rare experience.

Bob,

Poppycock.

We have rogue Supreme Court Majority challenging a President on his wartime powers. Our misfortune is that President Bush that lacks the backbone to face them down unless he has no alternative.

Tom Holsinger's letter to the WSJ-Opinion page makes the stakes on that score clear.

http://www.opinionjournal.com/editorial/responses.html?article_id=110005283

No Judicial Review The majority opinion in Rasul v. Bush is also notable for what it doesn't say. Justice Scalia's dissent shreds the majority opinion on the merits, but what is really scary is what isn't in the majority opinion--almost all contrary precedent, starting with the fact that enemy combatants merely being held without charges have never, ever, been given access to federal courts.

The majority opinion presents a surprising but characteristic (of bad decisions) type of analysis--result first and reasoning afterwards. Given the briefing, the majority opinion reads like an advocate's brief itself, not a judicial opinion. They flat out disregard the plain language of the habeas corpus statute, as Scalia points out, ignore the vast amount of contrary precedents, and invent immaterial distinctions to get around the precedents they can't ignore.

This tells me that a six-judge majority of the United States Supreme Court is directly challenging the executive branch's war powers.

In a war where the homeland has been attacked with biological weapons.

There will be more majority opinions like Rasul v. Bush in this war. Not only will it be used to create more bad opinions, but the majority clearly does not feel itself bound by past precedents. Do not expect acceptable results from a Court whose majority issues rulings like this one. They will issue a lot more like it.

President Bush will try to avoid this fight, but this lawless Supreme Court majority won't let him. They'll push and push and push until finally they meet resistance, and then they'll find out the hard way that the judicial branch is the weakest branch of government.

The struggle may get lots of Americans unnecessarily killed. And, from a judicial perspective, it will result in vast disrespect for the judicial system and the law in general.

This lawless majority will bring about that which they (purportedly anyway) most fear. "Those whom the gods would destroy, they first make mad."

Even leaving aside Tom's point about detainees never in American history having acces to the Federal courts, the Supremes in Rasul gave non-Americans more rights via access to American courts than they gave American citizen-detainees in Padilla.

Padilla has to file in the appropriate local district court of jurisdiction while and non-American detainee can file in Any American federal district court rather than the appropriate D.C. federal court. In so many words, they legally contradicted themselves in their opinions issued on the same bloody day.

Please also note the remanding of Rasul to the California Federal Circuit -- the most overturned federal court --- rather than the D.C. Circuit.

Only a lawless majority looking for a specific outcome would rape past legal precedence in such a blatant way.

We are now in the middle of a Constitutional crisis of the Court's making that will result in the stripping of the federal judicial branch's powers and societal deference it earned in the Civil rights era.

Joe, My commendations on posting format instructions. I had wondered how to embed hyperlinks, not just cite them. (For the record, the original post here was a Word document and the formatting is a lot less mysterious).

Trent, Rasul was a confusing opinion, but it's a lot narrower than the first reaction made out. (And some of the alarm-bell ringing had a polemical edge to it; this is an election year and there's always a temptation to make things out a little worse than need be). Rasul purported to be about enemy combatants from "friendly" countries, which narrows its usefulness. There was also a lot of fiddly stuff in the decision about whether this decision or that (_Braden, Ahrens_) overruled Eisentrager -- smart lawyers can argue both sides of that, since the majority didn't actually say they were overruling Eisentrager.

Scalia's dissent will lend itself to Gov't briefs for other reasons, however -- for one thing, which Federal District is Guantánamo in? And one thing that Federal courts are wary of is "forum shopping" and will be very open to Gov't challenge on that count. Motions on forum non conveniens alone could stymie a detainee's lawyers for some time.

Also, the majority relied on the Federal habeas statute, 28 USC § 2241. That's a legislative enactment and nothing is stopping Bush from getting Congress to alter it. Nothing is stopping Bush from putting the detainees before a drumhead tribunal -- military commissions -- and Gitmo has started that. Or from constructing a status of wartime detention -- for the duration of hostilities -- that confers the permanence of PW status without the rest of it. Or from simply extraditing the prisoners to the new governments in Iraq or Afghanistan or wherever the Gov't can justify it.

The majority also set aside -- see section VI of the opinion -- the merits of detainees' claims, merely whether the detainees can come back and contest the overall policy of indefinite detention. That suggests (1) yet another case (round 2, no knockout), but (2) no blizzard of individuals' particular claims, as yet.

And -- dig this -- the Justices didn't bother invoking Geneva (merely the Gitmo lease, in which they confer US sovreignty on it -- which will not amuse Fidel). They could've said it was a violation of III/IV Geneva Convention &c. &c. and that would've really made a mess.

And in any event, any appeal by prisoners will take years to work their way back up. Assuming they can find a court that will hear them.

And in any event, the President's war powers have not been unlimited, and haven't been since 1952 (that was Youngstown) nor have the courts been totally excluded from military justice since at least 1942 (that was Quirin). Scalia is simply ringing an alarm bell; when he says this "extends the habeas statute to the four corners of the earth" it is a signal to Gov't lawyers to figure out why it does not. Scalia's dissenting, his assertion that detainees could file in any district court is not binding case law, just his say-so (_ipse dixit_).

Sure, someone could file in, say, the District Court in San Francisco, but unless the attorney can show that the court indeed has jurisdiction the judge could simply tell him/her to go sit on a writ. And as you say, throwing Rasul back to the 9th Circus -- which you yourself cite as the most overruled circuit -- is like putting a cat in a cement mixer: it won't fly very easily.

(PS. What makes you think the courts got increased respect during the Civil Rights era? "Impeach Earl Warren", I remember, was a mantra in a lot of places, not just the South.)

One more point: it isn't true that detainees never had access to American courts. They've had access -- why do you suppose the Court heard, say, Eisentrager, Quirin, the Prize Cases? But Eisentrager still stayed in jail, the German saboteurs still got fried. The courts might hear appeals but it doesn't follow that they'll free anybody. That's not how it works.

Don't panic.

The war goes on.

Tom Holsinger's comments:

The only clear and certain ruling in Hamdi is that the Executive Branch may detain an American citizen as an enemy combatant for some sort of extended period upon some sort of governmental showing, with both the duration and nature of the showing to be determined at a later date. The Supreme Court is divided and needs more time for reflection and horse-trading. Those trying to read more into Hamdi than this should submit employment applications and writing samples to the New York Times.

Padilla underlines how divided the Court is at the moment. IMO they punted it downstream because they couldn't form a majority, or even a sufficient plurality, opinion on anything dispositive. This division is best highlighted by the fact that the particular means they chose to duck a decision in Padilla directly conflicts with their holding in Rasul, as Trent notes above.

Rasul is definitely the Supreme Court's worst decision since Dred Scott. See my letter to the Wall Street Journal quoted by Trent above, and note that the six-judge majority opinion totally ignores the policy implications their jurisdiction claim has which were repeatedly underscored in the briefing.

The intelligence implications here are devastating - the Executive Branch may no longer keep the identities of captured unlawful combatants secret from the enemy. This makes it effectively impossible for American intelligence agencies to infiltrate the conspiracies of foreign terrorists.

It also means that friendly and neutral foreign intelligence organizations will be much less likely to divulge critical information to us from their under-cover sources infiltrated in terrorist conspiracies lest their sources be compromised.

The six-justice majority in Rasul was aware of these problems because the briefs of the Solicitor General and many amicus curaie specifically notified the Court of these issues.

Bob is flat out wrong. Federal Article III courts have never, ever, had habeas jurisdiction over enemy combatants captured and detained abroad during on-going hostilities. It has had habeas jurisidiction only over some of those charged with offenses in some circumstances after cessation of hostilities.

And those circumstances have never, ever, involved mere detention during on-going hostilities.

That didn't happen until Rasul. And to get there the Supreme Court ignored its own precedent in Padilla set that very same day.

Make no mistake. A majority of the United States Supreme Court no longer feels constrained by its past precedents, new precedents set the same day, or the plain meaning of a statute. They know what results they want and will trample on anything, including the Constitution, to get it.

They also disregarded immediate threats to the lives of hundreds of thousands of Americans from terrorist biological weapons - the "Daschle-grade" anthrax is still out there.

May God save the United States from the direct threat to America's security created by a lawless majority of its Supreme Court.

Tom,

Wrong. There is a difference between courts hearing a habeas appeal and actually taking jurisdiction. They also made it quite plain in a number of cases -- read ex parte Quirin -- that they expect ultimate review, and Scalia's Hamdi dissent makes it quite plain that habeas has not been suspended in this war. "Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions." -- Scalia

BTW, Quirin was a habeas petition. In 1942. Be careful before you use the word "never," and for that matter be prepared to argue case law.

Also, courts wind up hearing cases post-war because they often take a long time to work up through the system, and sometimes the trials themselves are post-war. This was true in Eisentrager, the Germans were in Hamelin jail after having been tried in Nanking after VJ Day.

As for this being the worst case since Dred Scott -- that was in 1857 and a lot of cases have come down since then. Claiming this is the "worst" is as sweeping as saying that "this will get lots of Americans killed." And what exact bearing does the anthrax attack have on these detainees? As a matter of law?

It's also highly misleading to assert that we will have to reveal the identities of enemy agents' capture, or that we somehow now have a duty of full disclosure. The FISA court does have safeguards on disclosing sensitive information, if the Administration ever bothered to pursue FISA proceedings.

Finally, the idea of making suspects disappear indefinitely is itself a threat to national and personal security. I've lived in countries where people were "desaparecido" for reasons of national security, and a convenient cover it was to make the disappearance both impossible to trace, and permanent.

Bob,

Now you are playing games.

Courts always have jurisdiction to determine whether they have jurisdiction. That was what Rasul was about. But Rasul just asserted jurisdiction - now there must be factual hearings in district courts for non-citizen enemy combatants, just as for U.S. citizens Hamdi and Padilla.

Never, ever, before has any Article III court asserted habeas jurisdiction over non-citizen enemy combatants who were merely being detained abroad during on-going hostilities, after being captured abroad.

Sure the courts might not grant the habeas writs. But they will now entertain them on the merits. That latter is utterly without precedent.

Prove me wrong with just one citation on point, or admit I'm right.

The prisoners in Quirin were:

a) Seeking habeas relief from death sentences rather than mere detention; and

b) Apprehended in the United States rather than abroad; and

c) Held in the United States rather than abroad.

Rasul is not supported by any precedent.

You say it is. Give us one - just one, or admit I'm right. Four elements are required:

1) Habeas jurisdiction asserted over detention (by asserted I mean as what Rasul just ordered - a hearing in a district court - you carefully avoid my point about identities being revealed);

2) By non-citizen enemy combatants held abroad;

3) Who were captured abroad;

4) During on-going hostilities.

You've got nothing.

Tom, It might behoove everybody to read that decision. The precedential chain for Rasul was Ahrens and Braden, just for starters. The majority's precedents were thin but they were there.

And to assert "there must be factual hearings in district courts for non-citizen enemy combatants, just as for U.S. citizens Hamdi and Padilla" is just plain wrong. Section VI of the majority decision made it quite plain that the question of jurisdiction is now up, not a whole cornucopia of the facts of their individual arrest.

If by precedent you mean "mirror image," i.e., an identical set of facts, you know very well that that's not how stare decisis works. It is a thin set of cases the majority used but it is precedent.

BTW, ultimata are not any kind of reasonable discourse: "give me facts to my satisfaction or admit i'm right" sounds like the sort of thing Rush Limbaugh does. I might point out that the gravamen of this whole thread is that the 3 decisions are hardly a basis to panic. If your contention is that panic is the order of the day, I'm not convinced.

And as for secret detention, THESE ARE UNLAWFUL COMBATANTS WHO ADHERE TO NO GOVERNMENT.

The Geneva Convention requires that the governments of lawful combatants be notified of the identities of their POW's held by others.

AFAIK, the U.S. government has in fact notified foreign governments of the identities of prisoners of their nationalities held at Guantanamo. Neither we nor those foreign governments have chosen, in all but a few cases, to make those identities public.

Rather the governments have kept the prisoners' identities secret to further investigations of the terrorist conspiracies involved.

So go tell the governments of Egypt, Syria and Saudi Arabia that it violates the U.S. Consitituton for them to fail to publicly disclose the identities of their prisoners held at Guantanamo.

By your reasoning the U.S. Constitution applies to everyone everywhere.

Bob,

You've got nothing.

A bit of amplification - the four elements Bob can't prove are the critical ones from Eisentrager - a holding directly on point which Rasul distinguished with nonsensical crap equivalent to "we can ignore cases entered on an odd-numbered day of the month if today is an even-numbered day."

oops.

Eisentrager involved prisoners convicted of offenses after hostilities had ended. The Supreme Court found it had no jurisdiction because the petitioners were captured and held outside the U.S. (captured in China, then convicted either there or in Germany, and imprisoned in Germany after sentencing).

Bob,

Trying to baffle us with legalese does not get around this basic fact of law:

Rasul is not supported by any precedent.

It was invented out of whole cloth by a lawless Supreme Court majority intent on challenging the executive branch's war powers, in the middle of a war, after were were slimed at home by a bioweapon -- anthrax -- most likely delivered by terrorists provided it by a foreign state sponsor.

As for your point here:

Courts always have jurisdiction to determine whether they have jurisdiction.

That is a tradition of deference by the executive and legislative branches, it is not in the Constitution. The Congress and the President could pass statutes tomorrow that overtuned these decisions and place those statutes outside the original and appellate jurisdiction of the Judicial branch.

That this Constitutional 'nuclear weapon' hasn't been used against the courts is because the courts in the past have read election returns.

The break down of the Senate as an institution means the Supremes are dominated by ideologs and legal technitions who cannot see where this is leading too. Any more than the Southerner dominated Supreme Court could forsee that Dred Scott would help cause the civil war.

Any juducial institution that twists the law to its own ends for power places itself outside the law and in the realm of power politics. Where the only rule is there are no rules. For any judicial institution going that route, this is institutional suicide.

So, let's take the non sequiteurs in turn.

Egypt, Saudi, Syria et al, et al, are not subject to the U.S. Constitution. Rasul specifically dealt with 14 prisoner-petitioners, from Kuwait and Australia. I believe we have extradited a few prisoners already.

The only assertion that Eisentrager is overturned is from Scalia. It may very well still be on point given petitioners who were, e.g., Taliban.

Doesn't matter whether the enemy prisoners adhered to any or no government. Other threads on this site have brought out that the Geneva Conventions are not a mutual contract but an obligation on the parties observing it.

This, however, is a matter of US law. The UCMJ, as other threads already established, is binding on our forces worldwide, and that includes criminal statutes and the kind of regs inherent in prison operations, i.e., the military rules of procedure and evidence. Even the truncated version for military commissions or prison operations.

And in any event this is an issue whether due process applies to anybody in our custody. Wong Wing v. US held that it did, albeit in a criminal proceeding. Yamashita was silent on this point. The 5th Amendment does not distinguish between citizens and non citizens on due process, and due process includes habeas applications.

And if Rasul is flaky in its majority ruling, then it may not have effect beyond its primary holding, which was -- repeating a point I've made 3 times already -- "only whether the federal courts have jurisdiction to detemrine the legality of ... indefinite detention of individuals who claim to be wholly innocent of wrongdoing." Not whether or not those claims have merit!

And the sky-is-falling scenario isn't going to apply if it takes the next two years just to find something in the Federal Rules of Civil Procedure to move a Rasul re-hearing forward. One class-action may dispose of this and it might be nice if Justice Scalia argued it for the Gov't.

And, for the laypeople among us, stare decisis does not mean that cases don't have to coincide exactly, point by point. ex parte Quirin still can apply, and does, even though Quirin involved German spies, a trial and a death sentence. Just because Kenneth Royall, the Germans' attorney, pleaded the case wearing a certain color of tie doesn't mean that is binding for stare decisis to apply 62 years later.

And one of your "elements" on Quirin -- which are your devising, not the caselaw -- is off. The Germans, arguably, committed at least part of their offenses, their training in Germany and their transport by U-boat and landing, were committed offshore (see footnote 1, the Eastern Sea Frontier and Gulf Sea Frontiers were also theaters of war, giving the US military jurisdiction). So it was both in and out of US territory, in a legal sense, and the legal sense is what got them fried, so it was potent enough.

Eisentrager prisoners -- to correct yet another point -- were convicted by a US military commission in Nanking, China, in late 1945. They did time in Hamelin jail, from where they filed their appeal. Until the creation of the Bundesrepublik the territory of Germany was arguably under US military court jurisdiction -- see Madsen v. Kinsella -- and in any event they were US-convicted prisoners.

Also, four elements invoke four or more different cases, in which the Court entertained habeas, never mind whether they granted:
1) Habeas jurisdiction asserted over detention. Chew Heong v. United States., 112 U.S. 536 (1884)
2) By non-citizen enemy combatants held abroad; That's why Johnson v. Eisentrager is so important.
3) Who were captured abroad; Eisentrager and (arguably) Yamashita.
4) During on-going hostilities. Quirin.

And in any event the language of the statute itself -- 28 USC § 2241 -- seems to indicate that Congress, not an activist Court, wanted the habeas writ to have some pretty wide application, esp. § 2241c. Now you're arguing with Congress, not just some arcane court rulings.

BTW, the original contention -- that this is the "worst" decision since Dred Scott -- still looks silly. What about Plessey v. Ferguson, Debs v. US, Hammer v. Dagenhart, Korematsu v. US, Bowers v. Hardwick, not to mention cases like Sacco-Vanzetti or Mooney-Billings? (And Mooney-Billings was a wartime terrorism case, I might add). All of them massive miscarriages of justice. This hardly stacks up.

That's all that's at issue. Whether foreign nationals can apply, never mind succeed. In any event, if Bush wants to put them before military tribunals then that invokes a very different appellate process, one that Quirin, Yamashita and Eisentrager definitely uphold.

There is one case involving a wartime terrorist attack, foreign espionage, major issues of habeas corpus, and uneasiness about national security in general. That's the Mooney-Billings case. July 22 will be the 88th anniversary of the bombing at Market & Steuart Streets in San Francisco, so it's timely in another sense.

One excellent source is Curt Gentry, Frame Up. Fascinating story.

If you're more of a legal bent, Richard H. Frost's The Mooney Case pursues more of that. Seems that Mooney's lawyers tried every obscure common-law writ they could think of.

Maybe the attack wasn't as big as 9/11, but for 1916, and in that context -- an attack on the crowd watching a Preparedness Day parade -- it was a major cause celebre in its time. And a warning to us now about runaway security.

The following was forwarded to a military affairs e-mail list I participate in regards the Supreme Court decisions we are debating via a law professor college classmate of the member of the list.

To quote the poster from my list:

He sent this to us with a one sentence explaination, "Now it begins."

------------------
CONTACT: Mahdis Keshavarz, Riptide Communications, Inc. 212.260.5000
Jen Nessel, CCR, 212.614.6449

CENTER FOR CONSTITUTIONAL RIGHTS FILES 5 HABEAS PETITIONS ON BEHALF OF
DETAINEES AT GUANTÁNAMO BAY

First Steps Taken in Securing Adequate Representation for Detainees

New York, July 2, 2004- The Center for Constitutional Rights (CCR) and
attorneys who represent a total of nine detainees at Guantánamo Bay today
filed five habeas corpus petitions in the Washington, D.C., federal court on
their behalf. CCR currently represents 53 individuals who have been held at
Guantánamo for over two years. Responding to this week's historic Supreme
Court decision, CCR is spearheading the effort to get the detainees their
day in court: the legal community is stepping up to provide the detainees
with the basic right to challenge their detention.

Legal counsel in the petitions includes the firms of Gibbons, Del Deo,
Dolan, Griffinger & Vecchione; Keller & Heckman; Clifford Chance U.S. LLP;
and Nixon, Peabody; British human rights lawyer Clive Stafford Smith;
Professor Eric Freedman of Hofstra University; and the Center for
Constitutional Rights.

The filing of today's petitions begins to put a framework in place to
implement the Supreme Court's mandate of speedy justice for the detainees.
The papers assert that the Petitioners' confinement lacks any legal basis,
and ask that they be released forthwith. The petitions further state that
the government has "exceeded the constitutional authority of the Executive"
and asks the court to "declare that the prolonged, indefinite, and
restrictive detention of Petitioner[s] is arbitrary and unlawful" under both
the U.S. Constitution and international law.

Yesterday, CCR faxed a letter to Secretary of Defense Donald Rumsfeld
demanding access to their clients. As outlined in that letter, CCR is ready
to "organize a delegation of attorneys" to provide legal counsel to other
detainees. The first of those attorneys are listed in the papers filed
today.

Earlier this week the Supreme Court ruled in Rasul v. Bush, the case brought
by the Center for Constitutional Rights that the Bush Administration's
policy of indefinitely holding detainees at Guantánamo Bay without judicial
review is unlawful. In its ruling the Court held that foreign terrorism
suspects may use the American legal system to challenge their detention.

The five petitions representing nine detainees are listed below:

1. Moazzem Begg and (British citizen seized in Pakistan) Feroz Abbasi
(British citizen, unclear where seized)
2. Murat Kurnaz (Turkith citizen with German residency seized in Pakistan)
3. Mourad Benchallali, Nizar Sassi and Ridouane Khalid (French citizens
seized in Pakistan)
4. Jamil El-Banna (Jordanian/Palestinian refugee residing in the United
Kingdom seized in the Gambia) and Bisher Al-Rawi (Iraqi refugee residing in
the United Kingdom seized in the Gambia)
5. Omar Khadr (Canadian citizen 15 years old when seized in Afghanistan,
currently 17)

-----------------

At this point I am willing to bet that this British human rights lawyer will turn over everything he learns to Al-Qaeda contacts in 'Londonistan' as soon as he gets it.

So much for American intelligence sources and methods, as the lawless majority on Supreme Court was warned about and ignored.

Which sounds alarming until you start going into the minutiae of the Federal Rules of Civil Procedure on discovery and protective orders and the rest of it. The Government attorneys can tie up proceedings with motions on those points alone, so it's hardly going to mean that AQ is going to learn all our secrets tomorrow. Or ever.

And the Lynne Stewart case means that those attorneys know they're going to be watched. And there's always the threat of Rule 11 sanctions -- which themselves would not preclude criminal prosecution of those attorneys for espionage.

And in any event the next stage is going to be over the merits of detention in general as Section VI of the majority decision in Rasul stipulated. Not whether Detainee X was properly apprehended at Mazar-i-Sharif.

Look for lots and lots of pleadings and motions on habeas and all that. All very arcane and abstract. Hardly the stuff to spook people with.

You're right, Trent: now it begins. It may drag on indefinitely given smart use of the FRCP. The lawyers will win great glory, maybe, and the detainees will quite possibly die of old age in the brig, while this goes in and out of Federal courthouses.

Meantime, the war goes on.

Trent, you are aware of what it means to swear an oath to uphold and defend the Constitution, right? Against all enemies, foreign and domestic? That that includes our Constitutional freedoms? And our system of government? Under which the Supreme Court is a co-equal part of our three-part government?

If people, including, yes, people accused of being terrorists, and, yes, actually guilty terrorists, don't have rights, what, precisely, are we fighting for?

Freedom is worth, I thought, if necessary, dying for. Making sure people have rights, even if, in fact, there's some risk involved (which I hardly believe will be allowed, but never mind), is part of the fight, is it not? Are our freedoms not worth defending, over the place of safety-at-all-costs, including the cost of our liberty?

(This isn't much of a risk, in any case; there is already a policy that all lawyer-client communications are monitored, remember; and you think the intelligence services can't monitor lawyers, yea, even unto "Londonistan," in your charming phrase?)

Be that as it may.

I prefer to take a risk, for the sake of liberty, over my security.

Isn't that what it means to be an American? (No slight on our fellow liberty-lovers intended.)

FWIW, today's NY Times reports that the US has been moving some detainees out of Gitmo to Saudi Arabia as part of a deal with our allies, and despite misgivings by the CIA and Justice Dept. Also:

"Prior to the Saudi case, the Defense Department had freed 35 Afghan detainees, including several elderly men, after concluding they posed no further threat. None had been transferred to a foreign government for continued detention or prosecution. ... Since the transfer of the Saudis, the Bush administration has sent other Guantánamo detainees to their home countries, including a Spaniard, a Dane and five Britons. As in the Saudi case, the administration's decision to transfer the men was based partly on the fact that the governments involved had supported the Iraq war ..."

So the Administration has been moving people about for reasons that may be unrelated to security worries. Some of the detainees also seem to have been there by mistake, which does happen in the confusion of a military campaign, and more reason to review detainees' cases in good time. And in any event the Administration can, and has, moved detainees about like chess pieces. This will complicate the next round of Rasul pleadings.

The war goes on, regardless.

My bet: if the Bush Administration had treated the Gitmo detainees as POWs—including military tribunals that individually found the Al Qaeda members to be unlawful combatants, and therefore not entitled to the protections granted to lawful POWs, and what's more convicting any of Osama's close associates of whatever conspiracy charges we can bring—then the Supreme Court wouldn't have ruled for Rasul. They might not even have granted cert.

I have to admit, I'd expected them merely to order the US to expedite the tribunal process to sort out the wheat from the chaff, without injecting rights to review in the civilian court system.

I think what changed their mind was an Administration that argued like Trent (across all three cases): that in "wartime" the President of the United States becomes an elected tyrant <Froomkin on this>, whose C-in-C powers allow him, at his own whim, to abrograte treaties, the UCMJ, and all other Congressional enactments. I don't believe any other Administration (including Lincoln's) has ever taken this view, and I'd say that eight members of the Court are vehemently opposed to it. Much as the Padilla ruling is a dodge, it's obvious from the Hamdi dissent that Scalia will side with Padilla once he files in the correct venue. The Bush theory is the opposite of the Lincoln/Rehnquist formulation: "None of the laws but one", viz., the Commander-in-Chief clause.

And under this power, Bush created a magical category. We refused to treat the detainees as POWs under the Third Geneva Convention (although we promised to treat them nicely); we certainly don't seem to treat them as civilians under occupation; we don't treat the US citizens among them as suspected spies and traitors, all of whom have some right to defend themselves in a neutral forum. I don't think the Justices (save Thomas) were very amused by this.

My other bet: After Kennedy retires, he'll speak of Bush v Gore with all the enthusiasm Justice Powell mustered for Bowers v Hardwick.

Andrew, your bet is already beginning to come true. Gitmo has started military-commission trials of some detainees. I don't like military commissions -- the Yamashita case was a judicial murder -- but Eisentrager, Yamashita, Madsen, Quirin do permit them. And the Court has, when it heard appeals of military commissions, has tended to let stand the forum, verdict and sentence when aliens were on trial for war offenses.

It is true that the Rasul majority had a thin line of cases to cite. You've just hit the reason: the Bush Administration seems to be making up procedures, nomenclature and status as they go along. In past conflicts, we've promptly treated foreign combatants, if not as PWs, then as illegal combatants (spies, pirates, saboteurs) to face quick military-commission process and execution, or as war criminals to face proceedings later. Simply sitting on them is something new.

I seriously wonder if the Administration really bothered to look at existing statutes, precedent or military practice before it went off like this. Besides an existing habeas statute -- 28 USC § 1441 -- they would've done well to reflect on Youngstown Sheet & Tube, which made it plain, among other things, that "The Constitution is neither silent nor equivocal about who shall make laws which the President is to execute." (Separation-of-powers issues again, the individual-liberty aspect notwithstanding). They even managed to ignore § 412 of the USA PATRIOT ACT, (8 USC §§ 1226 and 1226a) which does spell out procedure for detention of criminal aliens, including habeas procedure.

Gary,

This is what Judge Scalia said about Rasul while commenting upon the latest Alien Torts Statute decision in his partial concurrence:

We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect. For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law. Today’s opinion approves that process in principle, though urging the lower courts to be more re-strained.

This Court seems incapable of admitting that some matters—any matters—are none of its business. See, e.g., Rasul v. Bush, ante, p. ___; INS v. St. Cyr, 533 U. S. 289 (2001). In today’s latest victory for its Never Say Never Jurisprudence, the Court ignores its own conclusion that the ATS provides only jurisdiction, wags a finger at the lower courts for going too far, and then—repeating the same formula the ambitious lower courts themselves have used—invites them to try again.

It would be bad enough if there were some assurance that future conversions of perceived international norms into American law would be approved by this Court itself. (Though we know ourselves to be eminently reasonable, self-awareness of eminent reasonableness is not really a substitute for democratic election.) But in this illegitimate lawmaking endeavor, the lower federal courts will be the principal actors; we review but a tiny fraction of their decisions. And no one thinks that all of them are eminently reasonable.

American law—the law made by the people’s democratically elected representatives—does not recognize a category of activity that is so universally disapproved by other nations that it is automatically unlawful here, and auto-matically gives rise to a private action for money damages in federal court. That simple principle is what today’s decision should have announced.

"Those whom the gods would destroy they first strike mad."

Trent,

Now at last we come to the separation-of-powers question, and you are on to something. Is the Judiciary simply vetoing something that exceeds the Constitution? Or is it legislating? They did drop a broad hint that the habeas statute could use a re-think.

One thing that struck me about Rasul was how little the majority considered the Geneva Convention or any other part of international law. No III/GC, no Torture Convention, just this thing about a coaling-station and naval-basing lease from the pre-dreadnought era. This from a Court that invoked international law in the Lawrence sodomy case. They didn't drag it in here and let the devil loose. Why?

Now this argument is going someplace.

One complication regarding the Australian detainee: He's not committed any breach of Australian Law.
Had he been found to have waged war against Australia, that would be one thing. But at the moment, our laws do not cover this situation, it never occurred to us that it would arise.
Enacting an ex-post-facto law is within the Australian Parliament's power (despite the contravention of the UN Convention on Human Rights that it would entail), and such power has been used in the past. But rarely, and never over any matter pertaining to liberty. Such an Act would be grossly unpopular, and most unlikely to pass.
On the other hand, no-one (or almost no-one) wants to see someone who has fought on the side of our enemies, and in contravention of the Laws and Customs of Warfare get off. We certainly don't want him back, he's your problem, do with him what you see fit. Just don't release him, as we can't hold him.

As for, say, Australian nationals in our custody, we do have a number of options -- perfectly legal -- which might not entail turning them loose if they pose a hazard. Using these options would complicate any Rasul habeas petitions in the US, since those petitions are founded on the premise that the detainees so far haven't been charged or classified as PWs. Some options:

One, even if the Australian gov't doesn't have charges that would require extradition there, the new Afghan gov't may have charges, since any offenses they committed would have been committed on Afghan territory. Maybe Mamdouh Habib was visiting relatives, but it's hard to picture how David Hicks would be in Afghanistan as an uninterested party. Anything that construes as spying or espionage could get them in deep trouble.

Two, under the Nuremberg Charter, and if they are accused of some offense against the laws or customs of war or of crimes against humanity -- and this is often a matter of international common law, jus cogens, not just in any country's internal statute books, then the parties to the conflict, which could include the current Afghan gov't, the US (jurisdiction: CENTCOM), Australia or some combination could establish a tribunal for this and other cases. (Principles of Charter of Nuremberg, US ILC, 1950).

Three, the US can try them if we can show any connection between them individually and any offenses against US forces or as accomplices to the 9/11 attack. Sifting out the suspects, witnesses and innocent bystanders, according to US Army Field Manual 27-10, can be a "competent tribunal" of 3+ officers acting on prescribed procedure. That need not involve breaches of intelligence to outsiders, and will establish whether they're legal combatants as defined by IIIGC/Art. 4. Few in the Taliban would fit the 4 criteria in Art. 4.

Four, individuals participating in some breach of international treaties, e.g., the 1956 Convention for the Protection of Cultural Properties, in light of the Bamyan demolition, could be tried for those offenses as a separate matter, which at least will mean their destination would be settled: prison at least. Anybody who participated in the destruction of those statues or in the other art "purification" activity, would be liable. Again, the Afghanis, the US, or a tribunal of participating powers might try them. Ditto for other treaties on, e.g., slavery or women or labor.

Not nice, but the laws of war as they currently stand do suggest a number of ways of dealing with these particular suspects. Be advised, however, that if we have to turn them out, we will have to deport them home -- USA PATRIOT Act, etc. -- so they may have to go to Australia anyway. However, the allied powers do have options, plenty of them. But just sitting on the detainees may not be an option much longer.

A postscript, by William F. Safire in a pungent and on-point column in today's NY Times. The intriguing part:

"But one cabinet member reacted curiously [in Nov. 2001]. Despite the White House order to give enemy combatants no legal rights ... Defense Secretary Donald Rumsfeld convened a panel of serious outside lawyers aware of the wartime mistakes of Lincoln, Wilson and F.D.R. They reshaped the Bush order to give accused noncitizens before military tribunals the rights to counsel, public trial, appellate review and other protections in the Uniform Code of Military Justice.

"Then Ashcroft Justice dug in its heels and the system stalled for years. ..."

If so, then someone did try to use the system, and was stymied. The Constitutional criminal rights Mr. Safire enumerates are included in, among other places, Arts. 31-38 of the UCMJ and in the Manual for Courts-Martial. The UCMJ is law enacted by Congress -- 10 US Code §§ 801 et seq -- and the MCM is an Executive document (Art. 36, UCMJ allows the President to set military trial rules) that includes, among other things, military rules of evidence quite similar to the Federal Rules of Evidence. So, the President, as properly authorized by the Legislative, had all the procedures necessary.

Would've been nice if we'd done this from the start. Safire, as usual, is dead on.