Hamdi v. Rumsfeld
2/11/2011
LJST 45
In their dissenting opinion, Justices Scalia and Stevens allow the Government
no excuses for their detention of Hamdi. According to the dissent, the Government
has two choices: to prosecute Hamdi in federal court for treason or suspend habeas
corpus.
Citing Blackstone, English law, and the Federalist papers, Justices Scalia and
Stevens bring the problem of indefinite detention back to the foundations of our
legal system. By quoting Hamilton instructing that, “the practice of arbitrary
imprisonments … in all ages, [is one of] the favourite and most formidable
instruments of tyranny,” (2662) the dissenters highlight the negative perception of
confinement. The word that sets this quote apart is “tyranny.” Tyranny is what the
revolutionaries fought against in the War of Independence. Indeed, even today,
tyranny is what American troops fight throughout the world. Tyranny, with its evil
connotation, always catches the ear of an American.
This case questions how the United States treats people who are identified as
enemy combatants. Because Hamid is a U.S. citizen his status as an enemy
combatant lies between POW and criminal. Indefinite detention is a troubling
symptom of a state of emergency. (This is a concern for how the executive’s power
becomes seemingly unlimited in an emergency.) While, this is a problem for all
nations, the case of Hamdi v. Rumsfeld has brought to light a new problem owing to
Hamdi’s citizenship: in a state of emergency how should the Government treat its
own citizens who have rights that stem from their citizenship? Justices Scalia and Stevens frame the issue as follows: “the relevant question, then, is whether there is a
different, special procedure for imprisonment of a citizen accused of wrongdoing by
aiding the enemy in wartime” (2663).
According to Justices Scalia and Stevens, traditionally in the United States,
those citizens who have been found aiding the enemy have been prosecuted for
treason. In Article III, the Constitution states that citizens accused of treason should
face criminal proceedings. Not only do Justices Scalia and Stevens cite examples of
American citizens tried in federal court for treason during the World Wars, they cite
an unquestionably relevant example from only two years prior to this case. They
write, “the only citizen other than Hamdi known to be imprisoned in connection
with military hostilities in Afghanistan against the United States was subjected to
criminal process and convicted upon a guilty plea” (2664). If another U.S. citizen
was tried in criminal court in connection with the same place and events, why is
Hamdi held indefinitely?
The second choice that Scalia and Stevens give to the Government to deal
with an enemy combatant of U.S. citizenship is the suspension of the writ of habeas
corpus. They again, quote Blackstone in the beginning of this explanation, but in
this section Blackstone sounds like Rossiter’s Constitutional Dictatorship. Scalia and
Stevens conclude,
“And yet sometimes, when the state is in real danger, even this
may be a necessary measure … suspending the habeas corpus act
for a short and limited time … in like manner this experiment
ought only to be tried in cases of extreme emergency; and in these
the nation parts with it[s] liberty for a while, in order to preserve
it for ever” (2664; 1 Blackstone 132). There are multiple examples of times in American history when the Legislature has
approved the suspension of habeas corpus. Also, the Constitution authorizes this
suspension in Article I as Scalia and Stevens call it, “a safety valve” (2665). Although
it may be controversial, this is a Constitutional process for dealing with an enemy
combatant situation rather than throwing him in a cell without any regard for his
rights.
Scalia and Stevens go on to argue that there is no excuse for not trying Hamdi
as a criminal or suspending the writ because if the Government truly cannot try him
then he probably should not be detained in the first place. They quote Thomas
Jefferson and the 1807 House debates, which discuss the options of suspending
habeas corpus and criminal proceedings. The House debates show that the
alternative if habeas corpus is not suspended is “a court of justice, who will decide
whether there is any evidence that will justify their commitment for farther
prosecution … and if this shall be sufficient they will not fail to receive the
punishment merited by their crimes, and inflicted by the laws of their country.”
(2666) This is the proper proceeding for a criminal in the United States. Scalia and
Stevens are not simply arguing for Hamdi’s rights they are pursuing his right to a
proportional punishment to the crimes he committed against his country.
Although Justice O’Connor writes a compelling opinion, the extra-legal
process she creates for this situation and those in the future are my nightmare. I
agree with O’Connor’s assertion that war is not practiced the same way as it used to
be, this is a new age of war and the law must adapt to this world. We are in a time of
ongoing combat; wars don’t begin and end on a precise date anymore. However, O’Connor proposes what she calls a “burden-shifting scheme,” (2649) which
contradicts one of the founding ideas of our legal system. The idea that a suspect is
innocent until proven guilty is completely washed away when she permits the
Government to put forth a credible source and shift the burden of proof onto the
defendant to rebut his identification as an enemy combatant. If the United States is
going to tackle new challenges brought about by a new age of warfare while
maintaining and protecting our core values, then one of the foundations of our legal
system, innocence until proven guilty, cannot be negated. We must work with the
tools we are given to solve the case in front of us. Scalia and Stevens apply the laws
of the land to the case in front of them rather than creating a dangerous loophole.
Hamdi v. Rumsfeld
of 4
Report
Tell us what’s wrong with it:
Thanks, got it!
We will moderate it soon!
Free up your schedule!
Our EduBirdie Experts Are Here for You 24/7! Just fill out a form and let us know how we can assist you.
Take 5 seconds to unlock
Enter your email below and get instant access to your document