Fie on “War Powers” & Why Fed Courts, um, Sort of Rocks

Getting back in the groove of this law school thing after spring break, I just read the opinion in Padilla v. Hanft (PDF), the South Carolina District Court decision which came down about two weeks ago and held “that the Bush administration lacks statutory and constitutional authority to indefinitely imprison without criminal charges a U.S. citizen who was designated an 'enemy combatant.'” It's a great opinion because it's short, clear, well-organized, and it chooses positions on the law with which I can mostly agree.* In a great moment, it quotes this memorable bit from Ex parte Milligan, the case that held that where U.S. courts are open and their process unobstructed, a U.S. citizen cannot be tried by a military tribunal:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence.

Ex parte Milligan, 71 U.S. (4 Wall) 2, 120-21 (1866). I love that bit. Thank you Judge Henry F. Floyd, for striking a blow for sanity in a time of mostly madness. On this note, I must confess that, despite my consistent criticism of his writing and the position he takes, even I was moved to read Scalia's dissent in Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004). There, Scalia also struck many blows for sanity in habeas jurisprudence, including the following statement of the significance of “the great writ”:

 The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive. . . . The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property. When a citizen was deprived of liberty because of alleged criminal conduct, those procedures typically required committal by a magistrate followed by indictment and trial. * * * To be sure, certain types of permissible noncriminal detention--that is, those not dependent upon the contention that the citizen had committed a criminal act--did not require the protections of criminal procedure. However, these fell into a limited number of well-recognized exceptions--civil commitment of the mentally ill, for example, and temporary detention in quarantine of the infectious. It is unthinkable that the Executive could render otherwise criminal grounds for detention noncriminal merely by disclaiming an intent to prosecute, or by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing.

Hamdi at 2661-62 (internal citations omitted). Developments in federal habeas law in the past decade (at least since the passage of the Antiterrorism and Effective Death Penalty Act in 1996) should be very very troubling to all Americans, and they might be if anyone knew about or understood them. Despite the vitriol I so enjoy heaping on Federal Courts, I also love that class for teaching me about this and making me read this stuff. Don't get me wrong; I still think the material of Fed Courts is immensely frustrating because, as I commented here, “it's the human condition bashing its head against illusory ideals of truth, justice, and the American way.” Yet, I do appreciate the value and necessity of that head-bashing, and it's reassuring and gratifying to see that, at least sometimes, the result is a decision like Padilla (this most recent decision, not the one by the SCOTUS last year which was maddening!) that really does make sense.** * It would be more confident for me to declare that Padilla is “right” on the law, but that seems foolhardy since the law here is so malleable and even contradictory at times. Law school and the exigencies of practice tend to encourage lawyers to use such language—“this is right, that is wrong”—because they want to sound certain about their arguments for the benefit of their clients. This, in turn, makes the law seem more concrete and clear than it ever actually is. It also, I'm afraid, also tends to encourage categorical statements of truth from lawyers, like those I bemoaned here about some advice from an attorney about law review. The desire for certainty, for absolutes in the law, is understandable, but its effects are sometimes pernicious. ** I reserve the right to withdraw any positive statements I've ever made about Fed Courts as soon as finals arrives. Judging by the panic and newfound dedication the class has inspired in the heart of Energy Spatula, it's only a matter of time before I, too, will be denouncing this class as the bane of my existence.

Posted March 15, 2005 07:29 AM | 2L