Tuesday, June 29

A Supreme Court Dialogue - Due Process

A Supreme Court Dialogue : " I think Hamdi is even more significant than the Guantanamo cases. Sure, the court held that there was a category of 'enemy combatants' that could be detained on executive order, but it is described—repeatedly—as a 'narrow category,' apparently limited those captured individuals who would otherwise be 'returning to the field of battle and taking up arms once again.' Well, of course! How could it be otherwise? Surely no president would even be required to return an enemy combatant into an active shooting war. More significant is the statement of what the category of 'enemy combatant' may not include: 'We agree [with Hamdi] that indefinite detention for the purpose of interrogation is not authorized.' Of greatest significance, however, is the ruling on the amount of due process to determine whether a given individual is in fact an enemy combatant and is in fact being held for the narrow legitimate purpose for which an 'enemy combatant' can be held. Because 'the risk of erroneous deprivation of a citizen's liberty in the absence of sufficient process here is very real,' a citizen seeking to challenge his classification must have notice 'and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker.'

That is a major decision."