"Re Braden: But nothing in Braden supports departing from the immediate custodian rule in the traditional context of challenges to present physical confinement.
As I recall, and you may correct me if I am wrong, you are quoting Scalia's dissenting argument. The problem if I recall correctly is that Scalia is doing a deft dance around statutory interpretation to do what Scalia would not normally do, which is to use statutory silence (in this case on jurisdiction for someone confined by the U.S. government overseas) to avoid extending a right that they have under the constitution, or in this case to avoid a limitation on government power - namely that the U.S. government cannot lock someone up withot a showing somewhere that that detention is lawful."
--I had a nagging sense that you were playing gadfly more than anything when I signed off and went to bed last night. But I can't let this misrepresentation pass. You may stand corrected. The quote is NOT from Scalia's dissent. That would be difficult since Scalia didn't dissent in that case. The quote is from the majority opinion, written by CJ Rehnquist in which Scalia joined.
Thanks for the correction!
The Upcoming Supreme Court Cases Involving the Guantanamo Detainees By EDWARD LAZARUS http://writ.news.findlaw.com/lazarus/20031113.html
What Will Likely Be the True Basis for the Court's Decision
In the end, however, I don't expect that the Justices are going to decide the Guantanamo cases based mainly on a reading of the Court's precedents. Neither Eisentrager nor Verdugo-Urquidez provide clear enough guidance.
Indeed, the Executive's claim of authority to act independently of any outside legal constraint, and without providing any due process, is truly unprecedented. In Eisentrager, as noted above, convictions had already been duly rendered. In Verdugo-Urquidez, a seizure was at issue; after that seizure, process could and did follow.
As a result, the Justices have lots of room, in the Guantanamo cases, to make law without disturbing previous decisions. Thus, instead of looking to precedent, I think a majority -- including Justice Anthony Kennedy, the Court's pre-eminent moralist and a crucial swing vote -- will be moved by a visceral repulsion. They will be repelled -- rightly so -- by the idea that the Executive Branch may limitlessly detain any person without trial of any kind and hold that person incommunicado without any judicial review at all.
That didn't happen in Eisentrager or Verdugo-Urquidez. But it's happening now at Guantanamo.
For these Justices, such Executive self-aggrandizement will run headlong into basic notions of Constitutional checks and balances, and of the proper role of the Judicial Branch in particular. It will also run smack into the historical view - dating back at least to the Magna Carta - that unchecked Executive authority is a basic hallmark of tyranny.
This negative reaction, moreover, is likely to be compounded by the fact that the Administration's legal arguments will importantly hinge on a claim that, even viewed charitably, is mere hair-splitting. It is the claim that Guantanamo, land that the United States holds under lease in perpetuity and over which it exercises total control, is not U.S. territory because Cuba holds "ultimate sovereignty" to the land.
For these reasons, I believe the Court will rebuke the Administration in the Guantanamo cases. At a minimum, it will require that judicial review of "enemy combatant" status be provided.
Even If Legally Defensible, the Bush Administration's Claims Are A Policy Disaster
Meanwhile, a question of surpassing importance remains unanswered. I've explained why the Bush Administration is able to concoct a plausible (though not convincing) legal basis for its claim of unrestrained power over the Guantanamo detainees. But why in the world is it choosing to do so?
In the international community, the Administration's approach exposes the nation to the corrosive charge of hypocrisy. The charge is simple but powerful: America cannot impose democratic norms on others while flouting the rule of law at home.
Meanwhile, this approach exposes Americans stationed abroad to the substantial danger that other countries will give Americans taken prisoner the same legal rights the U.S. is affording the Guantanamo detainees -- that is, none at all.
Even within our own borders, the Administration approaches creates risk and distrust. Most people recognize that, in the age of terrorism we now entered decisively, Americans will be called upon to trade some of their liberty for a greater assurance of security. But, at the same time, they hope that incursions on liberty will be minimized -- taken as a regrettable necessity, not a fresh opportunity to avariciously expand power. This hope is dashed when, as in the Guantanamo cases, the Executive Branch arrogates to itself the right to exercise totally unreviewable power. Courts patrol the boundary of our liberties. But what if the courts cannot intervene?
In sum, we can be hopeful (though never extravagantly) that the Guantanamo cases will mark a decisive high note in the Supreme Court's sporadic history of checking unbridled governmental power. But it will remain a sad and troubling fact that the hubris of the Bush Administration made this test of national character necessary in the first place.
The issues that the SC are dealing with in Ahrens and Braden are very complex. The court is doing a delicate balance between observing the administrative convenience that was provided for in the statute with each judge within his jurisdiction, while avoiding the constitutional hazard of allowing the statute to be constructed so that it denies a habeas right altogether - at least in some circusmstances - in which case the statute becomes unconstitutional.
The problem with relying on precedent in Rasul is that it presents a new problem. Detainees were held under the powers of the U.S. overseas without benefit of any hearing whatsoever. THAT case had never been brought to the Supreme Court before, partly because no administration apparently had tried it before.