Stripped powers

Updated A fair number of the accounts of the Supreme Court's rulings on Monday about captives in the War on Terror^{(tm)(c)(pat. pend.)} have used phrases like "mixed message," "partial victory," "mixed verdict," and the like.

Yeah, well, bull. The fact is that no matter how it's spun, the Bushites lost. Period. Their "victories" were on technicalities and on points not really in dispute. On the basic legal, constitutional questions, the actual issues at hand, they lost flat out.

The three cases, of course, were those of Jose Padilla, Yaser Esam Hamdi, and the prisoners at Guantanamo. Taking the last first, by its decision the Court simply rejected outright the White House claim that those "detainees" have no access to US courts because they are non-citizens being held outside the country. CNN's senior legal analyst Jeffrey Toobin remarked that

the American government was in a very difficult legal position there. I've been to Guantanamo Bay. I've been to that base.

And having been there, he said, it was absolutely clear who was in charge of both the place and the prisoners. There was simply no way to separate US authority from the legal facts of Guantanamo and once the Court had to admit to that, the idea that US law, US constitutional practices, applied to those held there was a straightforward conclusion.

But if that's true, then Hamdi's case is even more straightforward, since he is a US citizen being held within the continental US. Supposedly, the question in his case was if a citizen could be held as an "enemy combatant." But the real underlying issue was if a citizen could be denied access to the courts to challenge their confinement. If the non-citizen "enemy combatants" at Guantanamo can't be denied such access, Hamdi's case becomes a no-brainer. Indeed, to have ruled otherwise presented a real risk of a slippery slope, as even the Court recognized.

Writing for the 6-3 majority in Hamdi v. Rumsfeld, Justice Sandra Day O'Connor said, "As critical as the government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat."

Simply put, there were no other decisions they could rationally reach. Now, note I did say "rationally" reach; this Court has been perhaps singularly adept at reaching irrational decisions when they favor the interests of the powerful. And, as George Washington Law School professor Jonathan Turley wrote in the Los Angeles Times on Tuesday,

Justice Sandra Day O'Connor and three colleagues seemed eager to find any implied authority from Congress to allow the president to declare citizens enemy combatants.

Toobin echoed the sentiment.

[O]bviously this is a court that feels very strongly about national security, about the president's ability to conduct foreign affairs, to conduct military affairs.

But in this case there was a powerful incentive pointing the other way, which is why I'm not surprised by the outcomed: To have ruled in the Bushites' favor, to have ruled that "enemy combatants" can be denied access to the courts on the president's say-so, would have been to rule themselves out of the issue. That is, they would have been circumscribing their own authority in ways that would have gone far beyond the traditional "no trespassing" zones. (One such, the biggest actually, being "battlefield" decisions of the president as commander-in-chief, which is why the Bushites tried to frame it that way.) I expected the chances of that to be near zero.

There was one technical victory for the Shrub gang: The Court did a little bobbing and weaving and ultimately, by a bare 5-4 majority, used the post-9/11 Congressional authorization for force against the perpetrators of the attack as a justification for allowing Hamdi to be seized as an "enemy combatant," thereby legitimizing this chimera where you are neither POW nor accused criminal but something in between. But even there, the victory likely rings hollow to the Bushites not only because the Court still asserted the right of such a person to raise a legal challenge, but also because it relied on Congressional authorization rather than inherent powers of the president, as the White House wanted.

Jose Padilla's case is somewhat different. Like Hamdi, he is a US citizen. Unlike Hamdi, who was captured in Afghanistan, Padilla was nabbed in the US. And unlike Hamdi, who the US accuses of carrying a gun for the Taliban (Hamdi says he's innocent and was just caught up in a sweep), Padilla is accused of planning to do something (set off a "dirty bomb") but not of actually having done anything. In a lot of ways, it actually would have seemed to have been the easiest case of the three. In the Guantanamo case, you had non-citizens held outside the US. In the Hamdi case, you had an American citizen caught in a combat zone. In the Padilla case, you had an American citizen taken on US soil who was not even an immediate threat; that is, even if he's guilty of what he's accused of, it was planning, not immediate action. So if the courts are available to the first two, why not the third? It seems a simple question.

Instead, the Court punted.

Relying on the absurd technicality that his suit named Defense Secretary Donald Rumsfeld instead of the commander of the Navy brig where he's being held, by 5-4 the Court dismissed his petition and said he'd have to refile in a lower court - that is, he has to start over again. Still, as

his attorney, Donna Newman said, "Today the Supreme Court did not rule that the president has the authority to detain an American citizen on American soil. What they did was delay the inevitable - that Padilla must be charged with a crime."

That is, while this can be considered a defeat for Padilla, it can't be considered on any legal principle a victory for the Bushites.

In short, as Turley put it,

[a]s established by the court Monday, the president cannot deny to either the Guantanamo detainees or citizens such as Hamdi and Padilla some semblance of habeas corpus, the right to answer the charges against them.

However, he adds "that this right was even at question is an example of a system at risk." So don't break out the bubbly. But do breathe a sigh of relief.

Footnote: From the June 19 New York Times:

For nearly two and a half years, American officials have maintained that locked within the steel-mesh cells of the military prison here are some of the world's most dangerous terrorists - "the worst of a very bad lot," Vice President Dick Cheney has called them. ...

But ... an examination by The New York Times has found that government and military officials have repeatedly exaggerated both the danger the detainees posed and the intelligence they have provided.

And just why are we not surprised?

Updated to include the Footnote.