Justices Back Detainee Access To U.S. Courts
But at the Supreme Court, only Justice Clarence Thomas embraced those claims yesterday.
Justice Antonin Scalia, joined by Justice John Paul Stevens, wrote that the Constitution forbids the president from doing anything but charging Hamdi with a crime such as treason or releasing him, unless Congress specifically authorizes executive detention. Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, reached a similar conclusion, but based on the argument that the Sept. 18 resolution did not clearly state Congress's intent to override a 1971 federal statute barring executive detention.
A four-justice plurality of the court -- Chief Justice William H. Rehnquist, O'Connor, and Justices Anthony M. Kennedy and Stephen G. Breyer -- acknowledged that the president did have authority to designate citizens as enemy combatants, under the Sept. 18 resolution and a 1942 Supreme Court ruling that approved of the designation of a U.S. citizen fighting for Nazi Germany as an enemy combatant.
Such authority "is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use," O'Connor wrote for the group.
But the plurality concluded that the president must exercise that authority in keeping with the constitutional guarantee of due process, affording Hamdi access to a lawyer and "a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker," as O'Connor's opinion put it.
Thus, those four, plus Thomas, formed a majority of five for the proposition that U.S. citizens could be held as enemy combatants.
But there was a six-vote majority for the part of the plurality opinion that outlined a hearing for Hamdi; Souter and Ginsburg agreed to vote for it, while Thomas declined.
Scalia and Stevens wanted no part of such a compromise. Reading his opinion from the bench in a show of strong disagreement with the plurality, Scalia said that "if civil rights are to be curtailed during wartime, it must be done openly and democratically, as the constitution requires, rather than by silent erosion through an opinion of this court."
It was unclear exactly what sort of legal process the court had created for Hamdi. In a nod to the administration, the plurality recommended that the usual presumption of innocence be suspended, and that the government be permitted to introduce hearsay evidence. It even suggested that in other future enemy-combatant cases involving U.S. citizens, a military tribunal might suffice, though the Bush administration has declined to use such tribunals against citizens.
But Souter and Ginsburg withheld their approval for those parts of the opinion, so they lack the backing of a court majority.
Ultimately, O'Connor left it up to district judges to fashion "a fact-finding process that is both prudent and incremental."
Supporters of the administration said this favored them.
"They are basically upholding the whole enemy combatant status and tweaking the evidence test," said David B. Rivkin Jr., a lawyer who has advised the administration on terrorism issues. "The only difference I can see is that you are entitled to have you or your lawyer give your side of the story."
Still, the net effect was to end what some legal analysts had seen as the administration's attempt to create a parallel legal system for terrorism cases, separate from ordinary criminal justice and controlled almost exclusively by the executive.
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