Going Medieval.

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.

(From Scalia's dissent in Hamdi v. Rumsfeld; Scalia dissented because he would go further than the plurality in the Hamdi case, which found the detention justified but, contra the Bush Administration, granted petitioner the right to judicial review.)

Indeed.

As I've written before, these are not novel propositions of law and civilization that the current Administration has sought to overturn -- or, in the so-called "torture memoranda," argued against. They are fundamental. They are bedrock. They are the foundations of Anglo-American law. It's fitting, therefore, that the most cogent -- and damning -- opinion in the Hamdi case is written by Justice Scalia, the supposed Arch-Conservative of the Court.

"Everything is up for grabs," after all, is not a conservative value. And "ends over means" is not an American one.

Comments

[Doh]

Arguably one of the unfortunate byproducts of the modern court is the proliferation of split rationales for decisions.

The Hamdi case will likely get reported as a 6-3 "mixed victory" (or, perhaps, a "partial setback") for the Administration when it was really an 8-1 loss on its core claim that the Executive can imprison citizens indefinitely without access to courts.

It would be nice if that message got sent more loudly.

[Norbizness]

Happy to read Scalia and Stevens' dissent, Thomas' dissent is just scary.

It's strange... throughout the moderate amount of controversy generated by the Padilla and Hamdi cases, I never really saw anyone in the blogosphere seriously argue for the Administration's Constitutional world-view. Was I being willfully blind?

[Katherine]

Boy, no one can ever claim that Scalia and Thomas agree on anything ever again. Check out this line from Thomas' dissent in Hamdi, especially the "arguably":

"I do not think that the Federal Government's war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them."

So apparently someone found the Office of Legal Counsel hey-royalism-isn't-so-bad memo convincing.

That said: I promised myself last week that if they got Padilla right I would never kvetch about Bush v. Gore again. Well, they punted on Padilla. But it seems as if they rejected the government's central argument ("we're at war, the president can do whatever he wants") by a margin of 8-1. If so (I haven't read the full decisions yet, so I'm not sure) I won't try to get out of my side of the bargain on a technicality.

And happy early fourth of July, everyone.

[Katherine]

That should be "agree on everything", in the first sentence.