Hamdi v. Rumsfeld

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.