The detention decisions

Of course, the decisions in the enemy combatant cases came down while I was out of town. I can’t really improve on the analysis and summaries that appear at, among others, Scrivener’s Error or SCOTUSblog. And Elaine Cassel has an interesting take at her civil liberties blog.

I was struck by Justice Stevens’ dissent in the Padilla case. In urging the Court to address the core issues, he concluded his opinion as follows:

At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.

Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.

Stevens also dissented in Bush v. Gore, saying, “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” Although it probably falls on deaf ears, it never hurts to remind the conservative crew that they elected this nut job, not us.

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