Terrorists get last laugh

The Supreme Court has issued rulings in three cases dealing with the rights of detained terror suspects and combatants. The Court rejected several of the Bush administration’s key positions. Here is the report from Fox News (“Mixed Rulings on Terror Detention Policies”). Here’s the Washington Post’s take (“Supreme Court Backs Civil Liberties in Terror Cases”).
In the Hamdi case, involving a U.S. citizen, a four judge plurality concluded that the president had the right to detain Hamdi. However, by a vote of 6-3, the Supreme Court also ruled that Hamdi has a right to his day in court, and only Justice Thomas actually supported the administration’s position. For what it’s worth, I agree with the Court on this one.
In the Rasul case, which involved prisoners held at Guantanamo, a 5-4 majority held that foreigners arrested overseas also have access to the U.S. courts. This ruling strikes me as daft. As Justice Scalia said in his dissent, the “consequence of this holding, as applied to aliens outside the country, is breathtaking. It permits an alien captured in a foreign theater of active combat to bring [suit against the Secretary of Defense]. The Commander in Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs.” Come to think of it, though, the Commander in Chief should probably have realized that this Court would unleash that machinery.
In the Padilla case, the Court ruled that a lawsuit filed on behalf of detainee Jose Padilla improperly named Defense Secretary Donald H. Rumsfeld instead of the much lower-level military officer in charge of the Navy brig in South Carolina where Padilla has been held for more than two years. Padilla must refile a lawsuit challenging his detention in a lower court. But for this technicality, Padilla almost surely would have prevailed in his position that, as a U.S. citizen, he cannot be held without being charged. And he should prevail on this question, in my view.
As one would expect, the Volokh Conspiracy has fine commentary on these rulings. For example, Eugene Volokh picks up on Justice Scalia’s theme to explain how, under the Rasul decision, litigation could easily become a tactic of warfare. It was widely reported that the American legal system was something of a joke among terrorists prior to 9/11. The joke was that America retaliated against terrorists by filing lawsuits. Since 9/11, the joke has been on the terrorists. But now, thanks to the Supreme Court, it may be the terrorists who retaliate by filing lawsuits.


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