Hamdi v. Rumsfeld, the unlawful enemy combatant case, is of greater importance to the future of this country than many realize. But the Supreme Court decision is full of contradictions and deceptions. On the one hand, the Court upheld the right to due process. On the other, the Court determined that an "appropriately authorized and properly constituted military tribunal" with truncated procedures might suffice.[1]

The Court cited the Geneva Conventions but only as the basis for its assertion that "detention may last no longer than active hostilities" and as support for its suggestion that a military tribunal will suffice.[2] It made no reference to the fact that for two years the United States has been violating Geneva and that such violation is a war crime.

While upholding due process, the Court ostensibly upheld the Writ of Habeas Corpus, also called the Great Writ of Liberty--the original use of which was to require the custodian of a person detained without charges to produce that person before a judge for a determination of the legitimacy of his detention. But the Court was speaking with a forked tongue. While saying Hamdi had the right to challenge his detention, the Court eviscerated that right by the applying a "balancing test" used in civil cases--a test that in fact originated in the context of the deprivation of welfare benefits. Rather than requiring the Government to supply probable cause of criminal activity in order to detain Hamdi, Hamdi has to somehow prove that he isn't what the Government says he is. The Court pointed out that the lower court "apparently believed that the appropriate process would approach the process that accompanies a criminal trial."[3] Well, yes, a person being held in custody has the right to be charged with a crime or released. But the Court rejected this approach, stating that Justice Scalia, who dissented, "can point to no case or other authority for the proposition that those captured on a foreign battlefield . . . cannot be detained outside the criminal process."[4]

Yet, considering that the "Great Writ" of habeas corpus arose out of unlawful detentions without probable cause,[5] it is hard to see why the Court would refused to apply criminal procedural protections to challenges to the detention of persons who have claimed innocence. Innocent until proven guilty is supposed to be our standard. And, otherwise, if a detained person is not charged as a criminals, he can only be detained if he is determined by a competent and independent tribunal to be POW.

The Great Writ of Liberty

Can it be that the Supreme Court justices do not know the law and history of the Great Writ of Liberty? Justice Scalia was the only justice who spoke honestly about it. He said: "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."[6]

He quoted from the famed Commentaries of the British jurist and legal scholar, Sir William Blackstone: [C]onfinement of the person, by secretly hurrying him to [jail], where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.[7] He quoted from Alexander Hamilton: The writ of habeas corpus protects against "the practice of arbitrary imprisonments . . . in all ages, [one of] the favorite and most formidable instruments of tyranny."[8] And he added that "[i]t is unthinkable that the Executive could render otherwise criminal grounds for detention noncriminal merely by disclaiming an intent to prosecute, or by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing."[9]

Scalia even quotes from a 1997 Supreme Court opinion, that, "[a] finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment."[10] Then he notes that, of course, the allegations against Hamdi "are no ordinary accusations of criminal activity," but continues that "[c]itizens aiding the enemy have [traditionally] been treated as traitors subject to the criminal process."[11] He quotes from a 1762 treatise on treason that stated: The joining with Rebels in an Act of Rebellion, or with Enemies in Acts of hostility, will make a Man a Traitor: in the one Case within the Clause of Levying War, in the other within that of Adhering to the King's enemies.[12]

Although Scalia does not point it out, this language is reflected in our Constitution, which states that "[t]reason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." The provision continues that "[n]o Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."[13] Finally, Justice Scalia points to our treason statute and other provisions that criminalize various acts of war-making and adherence to the enemy,[14] and notes that historically remedies for indefinite detention were "not a bobtailed judicial inquiry into whether there were reasonable grounds to believe the prisoner had taken up arms against the King[, but r]ather, if the prisoner was not indicted and tried within the prescribed time," he was discharged.[15] T

his is, in fact, exactly what the Court's remedy is--a bobtailed inquiry -- , but what is even more odious is that the Court pretends to uphold the very thing it undermines: the Great Writ of Liberty. Instead of Congress having the courage to suspend the writ, as it and only it is authorized to do, or the Justice Department having the courage to bring criminal charges against Hamdi, or the Defense Department providing him with a real Geneva "status determination" hearing, or the Court insisting that the real basis of habeas corpus be upheld by mandating criminal process be followed, we have gotten, instead, the Mathews v. Eldridge standard, meant for determinations of deprivations of welfare benefits.

The Mathews standard goes like this: the process due "in any given instance" is determined by weighing "the private interest that will be affected by the official action" against the Government's asserted interest, "including the function involved" and the burdens the Government would face in providing greater process, then an analysis of "the risk of an erroneous deprivation" of the private interest if the process were reduced and the "probable value, if any, of additional or substitute safeguards."[16] What happened to probable cause of criminal activity? What happened to the Fourth, Fifth, and Sixth Amendment protections? What happened to innocent until proven guilty?

Given that Hamdi may now be heard by a military tribunal with procedures that allow for acceptance of hearsay evidence (not usually admissible in regular federal courts), a presumption in favor of the Government's evidence, and the burden on the detainee to prove the Government wrong, the result will be what one conservative commentator recently wrote: "[A]s long as Hamdi is given a meaningful opportunity to convince his captors that he should be released, their denial of his claim will probably be accepted by the Court."[17]

In the meantime, Hamdi is not the only one who will lose. The Great Writ has been a core part of democratic processes for over four hundred years. The Supreme Court may go down in infamy as the one that destroyed the Great Writ of Liberty, and along with it, our freedom.

Jennifer Van Bergen, J.D., is the author of The Twilight of Democracy: The Bush Plan for America, coming out September 1, 2004, Common Courage Press. She is one of the foremost experts on the USA PATRIOT Act and has taught anti-terrorism law at the New School University.

[1] Hamdi v. Rumsfeld, No. 03-6696 (June 28, 2004) (J. O'Connor, plurality op.), Part III (D), para. 4.

[2] The plurality opinion states that "it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Conventions." Hamdi (J. O'Connor, plurality op.), part III, D, para. 4.

[3] Hamdi (O'Connor), part III, C, para.2.

[4] Id., part II, para. 16.

[5] See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure (Hornbook Series, 2d ed., West Publishing, 1992), §28.2(b). ("The King's Bench apparently accepted counsels' contention that the writ could be used to enforce the Magna Charta's guarantee [of due process], but responded that it could not look beyond the crown's return [e.g., reply, mandate] , which stated on its face that the detention was lawfully authorized. Dissatisfaction with this ruling eventually led to a 1641 Act that removed the power of the Crown to arrest without probable cause and granted to any arrested person immediate access by writ of habeas corpus to a judicial determination of the legality of his detention.") (Emphasis added.)

[6] Hamdi (J. Scalia, dissent), part I, para. 1.

[7] Sir William Blackstone, Commentaries on the Laws of England, 1:132-133 (1765), quoted in Hamdi (J. Scalia, dissent), id., para. 2. (Spelling modernized.)

[8] Alexander Hamilton, Federalist No. 84 (G. Carey & J. McClellan eds. 2001) 444, quoted in id., para. 9. (Spelling modernized.)

[9] Hamdi (J. Scalia, dissent), Part I, para. 6.

[10] Id., quoting Kansas v. Hendricks, 521 U.S. 346, 358 (1997).

[11] Id., part II, para. 1 & (A), para. 1.

[12] Sir Michael Foster, Discourse on High Treason (1762), quoted in id., part II (A), para. 4.

[13] U.S. Constitution, Art. III, section 3. [14] Hamdi (J. Scalia, dissent), part II (A), para. 9.

[15] Id., part III, para. 2. (Emphasis in original.)

[16] Id. (J. O'Connor, plurality op.) part III (C), para. 3, quoting from Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

[17] Andrew C. McCarthy, A Mixed Bag (June 30, 2004), www.nationalreview.com/mccarthy/mccarthy200406300915.asp.

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