The Court's opinions in the first two cases, Hamdi v. Rumsfeld and Rasul v. Bush, are at times remarkably forceful. They are a profound testament both to the seriousness of the Bush administration's disregard for civil liberties and to the importance of judicial review. Therefore, I think it's worthwhile to quote here some extended excerpts, selected by me, from the full text of the majority opinions, as well as shorter bits of some of the concurring opinions. (Note that the majority opinions in Hamdi and Rasul were written, respectively, by a Reagan and a Bush appointee.)
"the Government has never provided any court with the full criteria that it uses in classifying individuals as [enemy combatants]....the circumstances surrounding Hamdi's seizure cannot in any way be characterized as 'undisputed...because Hamdi has not been permitted to speak for himself or even through counsel as to those circumstances' [quoting from lower court ruling]....[Petitioner] Hamdi's [interest] is the most elemental of liberty interests--the interest in being free from physical detention by one's own government....the risk of erroneous deprivation of a citizen's liberty in the absence of sufficient process here is very real....Moreover, as critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national securtiy of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat....We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law....it is...vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad....'the risk of erroneous deprivation' of a detainee's liberty interst is unacceptably high under the Government's proposed rule....We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker....We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts....We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens....it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge."
---Justice O'Connor, opinion of the Court in Hamdi v. Rumsfeld (joined by Rehnquist, Kennedy, and Breyer; in a separate opinion, Souter and Ginsburg partially concurred)
"To appreciate what is most significant, one must only recall that the internments of the 1940's were accomplished by Executive action....Hamdi...would...seem to qualify for treatment as a prisoner of war under the Third Geneva Convention, to which the United States is a party....By holding him incommunicado, however, the Government obviously has not been treating him as a prisoner of war, and in fact the Government claims that no Taliban detainee is entitled to prisoner of war status....This treatment appears to be a violation of the Geneva Convention provision that even in cases of doubt, captives are entitled to be treated as prisoners of war 'until such time as their status has been determined by a competent tribunal.'...[Moreover,] the USA PATRIOT ACT...authorized the detention of alien terrorists for no more than seven days in the absence of criminal charges or deportation proceedings....It is very difficult to believe that the same Congress that carefully circumscribed Executive power over alien terrorists on home soil would not have meant to require the Government to justify clearly its detention of an American citizen held on home soil incommunicado....in a moment of genuine emergency, when the Government must act with no time for deliberation, the Executive may be able to detain a citizen if there is reason to fear he is an imminent threat to the safety of the Nation and its people (though I doubt there is any want of statutory authority...). This case, however, does not present that question, because an emergency power of necessity must at least be limited by the emergency; Hamdi has been locked up for over two years....we are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the barons' insistence, confined executive power by 'the law of the land.'"
---Justice Souter, concurring partially with the opinion of the Court in Hamdi v. Rumsfeld
"By the express terms of its agreements with Cuba, the United States exercises 'complete jurisdiction and control' over the Guantanamo Bay Naval Base....Respondents themselves conced that the habeas statue would create federal-court jurisdiction over the claims of an American citizen held at the base....Considering that the statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the status to vary depending on the detainee's citizenship. Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts' authority....Petitioners' allegations--that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing--unquestionably describe 'custody in violation of the Constitution or laws or treaties of the United States.'"
---Justice Stevens, opinion of the Court in Rasul v. Bush (joined by O'Connor, Souter, Ginsburg, and Breyer; Kennedy concurred in a separate opinion)
"Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker."
--Justice Anthony Kennedy, concurring with the opinion of the Court in Rasul v. Bush
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