LAW FROM THE CENTER

Late Monday, the Solicitor General filed a brief in the Hamdi case, challenging the ability of the government to hold US citizens labeled enemy combatants without contact with a lawyer or a prompt filing of charges.

"When the commander-in-chief has dispatched the armed forces to repel a foreign attack on this country, the military's duty is to subdue the enemy and not prepare to defend its judgments in a federal courtroom," wrote Solicitor General Theodore Olson, on behalf of the government, which is seeking affirmation of a lower court ruling saying the detention of Yaser Hamdi is constitutional.

The brief continues:

"In this extraordinarily sensitive national security context, the [Supreme] Court should be wary of adopting a means of testing the validity of an enemy combatant's detention that defeats one of the important military functions served by that detention," Olson wrote.

The actual brief can be found here. The Government's arguments seem rather solid. First, it argues that the Court has said in two cases during the WWII/Korea War era that US citizenship provides no immunity from detainment in a POW camp. Classic stare decisis, and wartime stare decisis is the strongest kind. Second, it argues that, in accordance with Justice Jackson's opinion in Youngstown Sheet & Tube Co., the President's power is at its zenith during times of war. Since determining whether someone is a enemy combatant is an area where the military (as agent for the President) has a unique competency in, and that arguably most Article III judges have zero experience with, the decision of the Executive in this area demands the highest degree of deference. Finally, DOJ concedes that SOME level of habeus review is warranted. However, since the military deserves high deference, the government should only have to show a rational basis for the detention, supported by SOME showing of factual basis. Not the typical preponderance that is required in habeas procedings.

This brief was far better written than the last DOJ brief that I told you about here in Rasul v. US (the Guantanomo non-citizen case). Instead of following a scorched-earth policy that flips the bird to the court, in this week's brief, the DOJ conceded what it had to concede in order to gain credibility with the tribunal. By conceding limited jurisdiction to the court, it allows the Supreme Court to institute an extremely deferential standard in Habeas proceedings. Given the Rehnquist court's current war on habeas, I think the outcome in this will be easy to predict. And while, in other habeas cases, the liberals on the court have dissented, I don't think this is a sympathetic case. I predict at least a 7-2 decision, if not 9-0.