"The court said that nothing ... categorically excludes aliens from the privilege of litigation in U.S. courts," said Deborah Pearlstein, a lawyer for Human Rights First. "That's an enormously important statement for victims of torture and abuse in Afghanistan and Iraq and elsewhere." While it's not clear how the court would rule on petitions brought by such detainees, Pearlstein said she'd certainly try to bring such a case if she represented one.
That point sent at least some on the right right over the edge. James Taranto, editor of the Wall Street Journal's OpinionJournal.com, told his readers Monday that the court had "handed Osama bin Laden a victory" by ruling that "terrorist and Taliban held at Guantanamo Bay, Cuba, have the right to sue in U.S. courts."
Of course, Taranto's analysis simply assumed away the answer to the questions the detainees may present in court: Are they, in fact, "terrorists" who need to be detained?
Other conservatives were slightly less apoplectic but equally alarmed. The American Center for Law & Justice, the right-wing counterpart to the ACLU, called the trifecta of decisions "troubling." In a statement distributed to reporters, ACLJ chief counsel Jay Sekulow said: "By limiting the president's role as commander-in-chief, the high court interjects the federal judiciary into a process that is certain to result in chaos and confusion. The decisions will make it much more difficult to determine who is actually running the war on terrorism -- hundreds of federal judges across the nation or the President of the United States."
O'Connor attempted to preempt such criticism in her Hamdi opinion, writing that she had "no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns."
That balancing will consume the courts for months and maybe years to come. Joseph Margulies, who represented some of the Guantánamo detainees in the case before the court, said he and other lawyers working with the Center for Constitutional Rights will be back in court soon. "The great concern is that most [detainees] would be held with no process whatsoever, just cast into a black hole where they would stay so long as the administration would see fit," Margulies said Monday. "This is exactly what the [Guantánamo] decision rejects. We will go into federal district court, and we will move very quickly to get access to our clients, and the next step will be for the government to answer our allegations."
Padilla's lawyers, meanwhile, will have to start their case all over again; by a 5-4 vote, the justices said they had brought the case against the wrong defendant: Secretary of Defense Donald Rumsfeld rather than the commander of the military brig where Padilla is now being held. It's a temporary setback -- reading the dissent in the Padilla case and Scalia's opinion in the Hamdi case, it's clear that there are five votes for a lawyer and a hearing of some kind for Padilla. Still, the justices on the losing side of the Padilla decision were furious that the court had held him up on a jurisdictional technicality.
In a swipe at both the Bush administration and some of his more conservative colleagues on the court, Justice Stevens wrote that the "essence of a free society" was at stake in the Padilla case. "For if this nation is to remain true to the ideals symbolized by its flag," he wrote, "it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."
Stevens didn't carry the day on the Padilla case -- but only for now. As Bush rings the bells of freedom for Iraq, it seems clear that the Supreme Court is going to hold his administration to a high standard at home as well. While the nation may be at war, O'Connor wrote in the Hamdi decision, "a state of war is not a blank check when it comes to the rights of the nation's citizens."