...The Court's three rulings will surely complicate U.S. detention policy, at least at the margins. But at the same time they uphold the longstanding and proper deference that the Supreme Court has shown throughout its history to the executive branch on national security, especially in wartime. That includes decisions on how to define and handle a dangerous enemy. For a change, this particular Court actually restrained itself.
Most important, the Court upheld the authority of the Commander-in-Chief to detain enemy combatants, including U.S. citizens. That's the key finding of Hamdi, and the implicit basis of Padilla, which the Court threw back to the lower courts on jurisdictional grounds....
...pretty much guarantees that the 600 or so Guantanamo detainees will bring 600 or so habeas corpus cases--perhaps in 600 or so different courtrooms, with 600 or so different judges demanding 600 or so different standards of what evidence constitutes a threat to the United States. Justice Antonin Scalia's dissent shreds the majority's messy reasoning.
But the solution here is for Congress to step in with legislation consolidating all of the Gitmo cases in a single court. Arlington, Virginia would be a good choice, as that's where the detainees' ultimate warder, Defense Secretary Donald Rumsfeld, is located. It also has the advantage of being located in the jurisdiction of the Fourth Circuit Court of Appeals, which has already examined these issues in a serious way...
...anyone who reads Justice Sandra Day O'Connor's plurality opinion can only conclude that Yaser Esam Hamdi--or anyone else--is unlikely to be sprung from detention anytime soon.
Yes, Justice O'Connor wrote that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." But she also outlined the extraordinary deference that must be given the executive branch.
"The Constitution would not be offended," she wrote, "by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided." And "once the Government puts forward credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence."
In short, the burden is on the petitioner in these cases to prove that the government's designation is wrong. Just to be sure the ACLU gets the point, Justice O'Connor added that "the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting."
Even more striking, Justice O'Connor all but invited the Administration to set up a military court to hear Hamdi's plea. That suggestion goes a bridge farther than even President Bush has dared. His controversial 2001 order establishing military tribunals to try enemy combatants specifically excluded U.S. citizens even though there is ample legal precedent for their use. The Court's ruling is also an implicit suggestion that the military is capable of adequately reviewing challenges brought by the Gitmo prisoners.
All in all, the Court stepped away from the chaos of making judges the arbiters of American security. That's a welcome victory for the Presidency, no matter who wins in November.
