The Court Decides On Enemy Combatants

The US Supreme Court has issued a mixed ruling on the issue of holding Americans as enemy combatants, arguing that the President does have the right to designate someone as an enemy combatant, but also that they have the right to protest their incarceration in court.

I haven’t had a chance to read the decisions and won’t until the evening, but on a prima facie basis this seems like a reasonable decision. There is a need to incarcerate certain people as enemy combatants as they fit that decription. On the other hand, depriving them of all rights to trial can be seen as a serious breach of civil liberties. It all depends on how secret those trials can be — discussing information that would tip off other terrorists that we were on to them would seriously hinder the ability of law enforcement to prevent future terrorist attacks.

A balance must be struck between civil liberties as an absolute and the necessity of preventing mass-casualty terrorist attacks. The Court has the obligation to weight both on their relative merits, which may explain why the Court has given a split ruling in this case.

UPDATE: Spoons finds some interesting alliances in this case while Marty Lederman of SCOTUSblog argues that this is a big loss for the Bush Administration.

UPDATE: Eugene Volokh has some interesting thoughts as well. Scalia’s criticism of Rehnquist is highly interesting – the traditional liberal/conservative split in the Court doesn’t apply in this case. Scalia, considered the Court’s most conservative judge is actually siding with Stevens against Rehnquist and Thomas — not something one seems very often in SCOTUS decisions.

2 thoughts on “The Court Decides On Enemy Combatants

  1. What a mixed ruling!!! The term “enemy combatant” has been forbidden as it was (unlimited detention, no lawyer, no justification, wear this orange dress, bow down on your knees, shut up) but Jay considers it a mixed ruling. In a sense, it is still allowed to call someone “enemy combatant (even if the concept has been totally emptied).

    Funny how Jay realizes TODAY -even though I/we have been telling him for about 2 years, and that he never wanted to listen- that “depriving them of all rights to trial can be seen as a serious breach of civil liberties”…never too late to get it right, Jay! Maybe someday you will understand why people all over the world think that this war was unjustified.

    Anyway, Cheers up for democracy and for the judges. With a few more slaps like these, Bush is going from the White House directly to jail.

  2. Salon had a funny headline: “Bush gets checked and balanced.” That’d be a good line in an action thriller set on Capitol Hill. “You got checked and balanced, bitch.”

    Anyway it’s a good ruling. I think the president needs leeway to deal with situations we don’t have laws or policy for, but that leeway needs to be temporary and eventually reviewed – sooner rather than later.

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