Sunday, December 03, 2006

Better Check Your Papers



I haven't been paying enough attention to the recent enemy combatant, military tribunal, habeas corpus decisions and legislation, and it's far past time to remedy that. I started tonight with the Supreme Court's opinion with Hamdi v. Rumsfeld (2004), where the Court found that the President did not have the authority to hold citizens designated as "enemy combatants" indefinitely without a fair opportunity to challenge their status and detention:
Moreover, as critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security 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. See Ex parte Milligan, 4 Wall., at 125 (“[The Founders] knew—the history of the world told them—the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and thatunlimited power, wherever lodged at such a time, was especially hazardous to freemen”). Because we live in a society in which “[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty,” O’Connor v. Donaldson, 422 U. S. 563, 575 (1975), our starting point for the Mathews v. Eldridge analysis is unaltered by the allegations surrounding the particular detainee or the organizations with which he is alleged to have associated. 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, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails. . . .

Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally 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. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 164–165 (1963) (“The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action”); see also United States v. Robel, 389 U. S. 258, 264 (1967) (“It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile”).
From the Supreme Court's opinion in Hamdi v. Rumsfeld (2004) (emphasis added).

Jeffrey Toobin reports in the current issue of the The New Yorker on Congress's recent enactment of the Military Commissions Act of 2006 ("MCA") in September, which deals an unprecedented blow to the right to habeas corpus.

The frightening MCA also allows the government to hold citizens designated enemy combatants indefinitely -- i.e., forever.

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