Splitting the baby

SCOTUSblog reviews Hamdi, Rasul, and Padilla and finds a mixed-bag.

In language unmistakably placing the Court in the forefront of the constitutional battles that will continue to be waged so long as the war on terrorism continues, Justice Sandra Day O'Connor's lead opinion declared: "Striking the constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship." There can no longer remain any doubt that "striking the constitutional balance" will be done by the courts, not by the Executive or by Congress. No can there linger any doubt that when the opinions speaks of "our calculus," it meant judicial calculus. It is noteworthy that this view of judicial authority was shared today by all but one of the Justices (all but Clarence Thomas); seldom does this often-divided Court hold together so cohesively on the division of governmental powers.

The President, of course, did not lose everything he had at stake. By a vote of 5-4, the Court ruled that Congress' post-9/ll declaration supporting the President's response to those attacks had authorized the Executive to capture and detain, perhaps even until the end of the war on terrorism, those suspected of being terrorist activists acting in open aggression toward the U.S. Even so, the Court did not necessarily embrace that as an enduring constitutional concept: it added that the idea of detention for the duration of a conflict had emerged from the era of traditional wars, and then commented: "If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel." In other words, a war on terrorism that has no end may turn out to be too long for the Justices to go on allowing indefinite detention.

The Supremes did, however, rule extremely clearly and forcefully against the Bush administration's claims in recently unearthed memos that the president is above the war while executing the war.

And they were equally clear in denying administration claims that Guantanamo is a "lawless place," where foreign nationals may be kept under U.S. jurisdiction without recourse to U.S. courts.