Oh, But Don't Forget Rasul

In my haste to commend Scalia for his dissent in Hamdi (yesterday), I nearly forgot his typically hyperbolic and melodramatic dissent in Rasul v. Bush, 124 S. Ct. 2686 (2004). There, the majority decided that the D.C. District Court had jurisdiction to hear habeas petitions from Guantanamo prisoners, and Scalia lamented that the Court had taken the “breathtaking” step of “extend[ing] the scope of the habeas statute to the four corners of the earth,” and added that this was “judicial adventurism of the worst sort.” Um, Nino? How can you square this melodrama with your dissent in Hamdi? If “[t]he 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,” then what happens to that core of liberty when you make it depend on citizenship and geography? If the Executive can arbitrarily detain noncitizens abroad (and especially in territory over which the U.S. exercises almost complete control if not “ultimate sovereignty”) and deprive them of even basic due process, doesn't that make a mockery of the “liberty” we enjoy here in the U.S.? Sounds pretty hollow to me. Scalia's dissent in Hamdi makes a forceful case that “the Great Writ” ought not be simply a Constitutional right or an “Anglo-Saxon” right, but a human right, a basic core element of civilized society. And while it would probably be too much for the U.S. to try to force other countries to institute a common habeas regime, it's not too much to ask that the U.S. conduct itself in the world consistent with the idea that the very core of human liberty is freedom from indefinite and arbitrary imprisonment at the will of any U.S. authority, regardless of whether you're a U.S. citizen, an Iraqi belligerent, a suspected terrorist, or what have you. If we can arbitrarily imprison whomever we want, wherever we want, for as long as we want, w/out so much as giving them notice of why they're being imprisoned or allowing them to challenge their imprisonment, we become terrorists ourselves and everything else we do to secure “liberty” in the world will ring with the hollowness of hypocrisy. Yes, I understand that “war” creates special necessities and we should make allowances for the Executive to use its judgment there to some extent, but indefinite imprisonment with no process? No. Never justified. Never ever. Not by U.S. authority, not here on U.S. soil, not in Afghanistan, not in Iraq, not on the moon. I also think Scalia willfully misunderstands 28 USC §2241(a) and §2242 in reading them to limit federal habeas jurisdiction to territory that falls within the geographical bounds of an existing federal district court. You can read §2242 that way, but doing so would make it inconsistent w/§2241(a), which Scalia just plain misinterprets as the basis for his Rasul ranting. And yeah, I know what a joke it is for me, a second year law student, to be scolding Scalia about his statutory interpretation, but hey, when the man is wrong, he's just wrong. ;-) On the subject of habeas, see also Three Generations where “holmes” notes that a Connecticut court actually granted a habeas petition recently.

Posted March 16, 2005 07:30 AM | 2L