by far the most interesting of the three was the hamdi decision. hamdi was a u.s. citizen who was captured in afghanistan on the battlefield or caught up in the turmoil in that country while working for a charitable organization (depending on which side you believe). he was taken captive by the northern alliance, then handed over to the americans, who eventually transferred him to guantanamo. then they discovered he was an american citizen, so they transferred him again to a navy brig in virginia where he is today. so far, he has been held for more than two years incommunicado. initially, at least, he was not even allowed to communicate with his attorney.
the news reports i've seen about hamdi call it a 6-3 decision against the bush administration. it's really not. eight of the justices rejected the administrations arguments. all eight clearly hamdi has the right to an attorney, and cannot be held indefinitely without any right to a hearing. this is an 8-1 defeat for the administration, a landslide in supreme court terms. only thomas agreed with the bush administration, proving once again that he is the worst justice currently on the court.
what's also interesting about the case is where the eight who did not buy the administration's position all stand. the four member plurality (o'conner, rehnquist, kennedy, and breyer) held that while congress gave the president the power to detain hamdi when it passed its authorization for the use of force resolution in september 2001, it nevertheless must give him a chance to prove that he should not be held once he is removed from the area of conflict. note: this stands the normal presumption of innocence on it's head. hamdi, essentially has to prove he is innocent. nevertheless, considering the radical (and dangerous) proposal put forward by the bush administration, the court's assertion that hamdi has the right to a hearing soundly rejects what rumsfeld's pentagon has been pursuing up until now.
souter wrote a concurring opinion which ginsberg joined. as has been reported, souter and ginsberg believe that hamdi should be released immediately because the government has not presented any grounds which justify continuing to hold him. what i have not seen reported in the news accounts of this case is that the dissent written by scalia and joined by stevens also seems to call for hamdi's immediate release. on page 72 of the pdf version of the opinion (which is page 21 of scalia's dissent), scalia writes:
It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless: (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus.
scalia then looks at the authorization of force resolution and concludes that it did not constitute a suspension of the writ of habeas corpus. while he never says it outright, it follows that under the scalia/stevens opinion, hamdi should be released unless he is charged with a crime. which is, in essence, the same ultimate result souter and ginsberg reach. don't be fooled by the fact that one is called a "concurring opinion" and the other a "dissenting opinion." 4 of the 9 justices thought the government has no grounds for holding hamdi at all.
the other two cases are more straightforward. the padilla case was essentially thrown out on a technicality. the court ruled that the lawsuit should not have named donald rumsfeld as the respondent to his habeas petition, but rather melanie marr, the commanding officer in the south carolina navy brig where padilla is currently being held. marr, the court ruled, and not rumsfeld, is padilla's "immediate custodian." because marr has no contacts with the southern district of new york, where padilla's lawsuit was filed, the southern district has no jurisdiction over her. in other words, padilla must refile his case in south carolina naming marr as respondent.
although the court avoided all the meatier issues in the padilla case, the hamdi decision settled some of them. when padilla refiles his case hamdi guarantees that he will have access to an attorney and he is at least entitled to a hearing if the government wants to continue to detain him. furthermore, padilla could argue that the authorization of force resolution that was used to justify the special limited hearing in the hamdi case does not apply to him. the hamdi plurality decision was premised on the notion that hamdi was detained pursuant to the authorization for the use of force which authorized the president to use force abroad. padilla, unlike hamdi, was detained in the united states. thus padilla can still pursue a habeas petition and demand full protections afforded to a criminal defendant. whether he gets it is still not decided. he may end up with a hamdi-style hearing. though that is short of what a criminal defendant would get, it is already better than what the government argued padilla was entitled to prior to today's ruling.
the rasul case concerned a much simpler question: whether the non-u.s. citizens held in guantanamo bay are entitled to access to u.s. courts. the court held that because the u.s. had complete jurisdiction over guantanamo bay under its lease with cuba, the people being held there are entitled to petition u.s. courts for their release. the court divided 6-3 on the issue, with stevens, o'conner, souter, ginsberg and breyer in on the majority opinion and kennedy concurring separately. scalia wrote a dissent arguing that guantanamo is outside the purview of the courts because it is not on u.s. soil. his dissent was joined by rehnquist and thomas.
these three cases are important, not because they blazed new trails concerning the rights of the detained in american jurisprudence. indeed, the hamdi plurality with its guilty-until-proven-innocent hearings is actually a retreat from the rights we traditionally expect here. but the court has finally put the brakes on the outrageous and unprecedented abrogation of well-established rights the bush administration has been pursuing since 9-11. technically speaking, we have actually gone backwards a little bit today in terms of human rights and due process. but considering how bad it could have been, it still feels like a victory.
