Civil liberties in wartime

Yesterday the Supreme Court decided an important case upholding the constitutionality of a 1996 law mandating the detention of certain non-citizen permanent resident aliens who are the subject of deportation proceedings. The New York Times story is handy because it links to the text of the Court’s decision and the four other opinions in the case: “U.S. can hold immigrants set to be deported, Supreme Court says.”
The Court’s opinion is written by Chief Justice Rehnquist and divided into two parts. The opinion is unusual in that in part one the opinion is joined by Justice Kennedy and the four liberals, while part two is joined by Justice Kennedy and the other three justices with the four liberals dissenting.
The Court’s opinion does not address any of the controversial provisions of the USA PATRIOT Act that expand the government’s power to detain aliens, but Part II of the Court’s opinion sets forth the law bearing on the subject in a manner that is highly favorable to the government’s exercise of congressionally granted powers in this area, especially in time of war. The Court reaffirms the fundamental proposition that “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.”
Chief Justice Rehnquist has something of a sixth sense in devoting himself to the study of issues that appear of purely scholarly interest but that prove incredibly timely. In 1992 he wrote a study of impeachment proceedings, long before he could have foreseen that he might himself be called on to preside over the impeachment trial of a president. In 1998 he wrote an excellent study of the constitutional law of civil liberties in wartime. My reading of his 1998 book suggests that he is looking for an opportunity to make a contribution to constitutional law in the direction of the protection of civil liberties in wartime. Until one of the several pending cases raising such issues works its way up to the Court, yesterday’s opinion in the Kim case provides food for thought.


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