Supreme Court destroying habeas corpus.

Writing on behalf of the 8-1 Supreme Court majority in the case Hamdi vs. Rumsfeld, Justice Sandra Day O'Connor upheld the power of the president to detain citizens, under "very limited circumstances," as "unlawful combatants." However, O'Connor's opinion continued, due process requires "that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker."

Accordingly, the High Court sent the case back to federal district court, where Hamdi will be permitted to challenge the Bush administration's claims. Although clearly holding that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," the court upheld the power of the president to suspend habeas corpus protections through decree. It also specified that while a citizen designated as an "unlawful combatant" can challenge that designation, the burden of proof in such a case rests on the accused.

Yasser Esam Hamdi, an American-born Saudi claiming U.S. citizenship (a claim contested by some authorities, but stipulated to by both the Bush administration and the Supreme Court), was captured by Northern Alliance fighters and taken into U.S. custody shortly after 9-11. He was designated an "unlawful combatant" by presidential decree, and the sole evidentiary basis for that decision consists of an undocumented "declaration," written by an executive branch appointee named Michael Mobbs, that is described in the Hamdi decision as "second and third hand hearsay."

In an unusually pointed dissent, Justice Antonin Scalia condemned the majority decision for eviscerating the habeas corpus guarantee, which prevents the government from indefinitely imprisoning individuals without formal criminal charges or legal recourse. According to Scalia, "Hamdi is entitled to a habeas decree requiring his release unless 1) criminal proceedings are promptly brought, or 2) Congress has suspended the writ of habeas corpus." The September 20, 2001 congressional resolution authorizing use of military force against terrorist groups, Scalia continued, "is not remotely a congressional suspension of habeas corpus, and no one claims that it is."

"As usual, the major effect of [the court's] constitutional improvisation is to increase the power of the Court," Scalia continued. "Having found a congressional authorization for detention of citizens where none clearly exists ... the [court] then proceeds, under the guise of the Due Process Clause, to prescribe what procedural protections it thinks appropriate."

Invoking Alexander Hamilton's warning against Americans "resort[ing] to repose and security to institutions which have a tendency to destroy their civil and political fights," Scalia observes: "The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it." However, he concludes, "the Court has proceeded to meet the current emergency in a manner the Constitution doesn't envision"--one that may ultimately prove deadlier to our system of ordered liberty than anything al-Qaeda could inflict on us.