Dahlia Lithwick - another literary crush of mine - (does Michael Kinsley have a knack for finding them, or what?) - listens in when the Supreme Court listens to oral arguments. This time it's about Yaser Esam Hamdi and Jose Padilla, who are detained indefinitely at Camp X-Ray by the US department of defense.
Apparently, Congress in its patriotic fervor right after September 11th passed into law something that gave him the right to:
...use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks.
The administration's attorneys are arguing in front of the Supreme Court that this right exists without limitation; that "necessary and appropriate" is his call to make; that what "he determines" goes. If this is true, president Bush can - until and unless Congress revokes this authorization - use all necessary and appropriate force against anyone anywhere for any reason, as long as he determines it has something to do with terrorism.
Lithwick senses that
Most of the justices seem to crave something—whether it's crafted by them or Congress—to mediate between the president and words like "enemy combatant" and "forever." Whether they can come up with that something is the only question left to answer. The alternative is to accept the president's claim that we should just trust him.
It seems to me that the difference between a benevolent dictatorship and a democracy is that a democracy doesn't rely on trust to ensure a semblance (however imperfectly executed) of justice. I can't possibly imagine that Congress - setting aside partisan politics in an election year - meant for Bush to do whatever he wanted for as long as he wanted, even while the bill was in effect. "Necessary and appropriate" has to mean something more than "whatever," just as "determined" must mean something more than "feel like."
It's interesting to note that the defense attorneys aren't asking for a public trial in the county court house in New Pals - a properly assembled military tribunal is enough to give them a day in court. At issue here - clearly - is not the welfare of the detainees but the integrity of a judicial system.
So it seems to me - non-jurist that I am - that the Supreme Court must rule that a hastily passed resolution by Congress does not give the government the discretion to set aside habeas corpus indefinitely. At a minimum, the government has to explain what it will take to either release detainees or put them on trial.
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