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Sunday, Jul 12, 2009
The Supreme Court rules against indefinitely locking up detainees -- and deals a mortal blow to the president's vision of his own limitless power.
Jun 29, 2004 | On Monday morning in Turkey, George W. Bush scribbled "Let Freedom Reign" on a note about the Iraq handover passed to him by Condoleezza Rice. A few hours later in Washington, the U.S. Supreme Court -- led by four of the five justices who put Bush in the White House in 2000 -- accused the president of trampling freedom both at home and abroad.
In an extraordinary series of legal opinions that spanned three cases, filled nearly 200 pages and united justices usually at the polar extremes of political thought, the court said that the Bush administration's "trust us" approach to the war on terror amounted to an attempt to "turn our system of checks and balances on its head."
By a 6-3 vote, the justices rejected the administration's claim that detainees at Guantánamo Bay have no right to redress in U.S. courts. By an 8-1 vote, the justices rejected the administration's claim that it can hold alleged "enemy combatant" Yaser Hamdi in custody indefinitely without a hearing or access to a lawyer. And while the justices declined, on a 5-4 vote, to consider the merits of the case brought by alleged "dirty bomb" plotter Jose Padilla, the writing is on the wall there, too -- at least five justices are waiting to vote against Bush when the Padilla case returns to court.
"The unilateralism asserted by the administration has been decisively rejected," said Elliot Mincberg, legal director for People for the American Way. "You have eight justices who disagreed with the administration in the Hamdi case, and the question among them was not whether the administration was wrong, but how wrong it was."
For the Bush White House and for its Republican supporters, the toughest blow was the one delivered by one of their own. Antonin Scalia, deified by the right and held up as a model justice by the president, dissented from the plurality view in the Hamdi case -- not because it was too hard on the administration, but because it was not hard enough.
Four justices -- Sandra Day O'Connor, William Rehnquist, Anthony Kennedy and Stephen Breyer -- held that the Bush administration could detain a citizen such as Hamdi without charging him with a crime only if it provided him certain due process protections: the right to a hearing, the right to rebut the evidence against him, the right to a lawyer to help him in the process. Scalia, joined by liberal Justice John Paul Stevens, said that the administration had only three choices: persuade Congress to suspend the writ of habeas corpus, charge Hamdi with a crime and give him a trial, or set him free.
Anything less, Scalia wrote, "flies in the face" of the concerns of the founders.
