Hamedi Decision

So the justices found 8-1 that Hamedi was entitled to but denied due process. Interesting thing is that Scalia's separate concurring-in-part dissenting-in-part opinion was joined Stevens, not something that happens very often. I am heartened that on these matters, there are still 9 votes on the court. I have since long ago resigned to the fact that Scalia and Thomas constitute two votes that are always cast together. It's refreshing to see that Thomas can actually disagree with Scalia. Having said that, I must say I am scared by Thomas' logic. Thomas basically argued that the court must accept the President's words for anything committed in the name of national security. The OConnor camp (including Rehnquist, Breyer and Kennedy) said that they would not question the President, if the President shows some minimal reliable evidence; Thomas won't even require that. Scalia, Stevens, Souter and Ginsburg, in two separate opinions think that the President should either release Hamedi or prosecute him for treason, but no military justice. If Thomas' approach is reasonable, Saddam Hussein can probably escape war crimes prosecution for the atrocies committed in 1980s against his people and the Iranians. Although the Geneva convention and prisoners of war issue is not before this court, the justices (except for Thomas) have said enough about the reach of presidential power to detain individuals at war time that one can surmise how the "illegal combatant" issue would be decided if it ever is presented to the court: prisoners of war are in protective not punitive custody. For detainees who fail to qualify as prisoners of war, they can be prosecuted and imprisoned under applicable laws WITH due process safeguards. I think the court pretty much trashed Professor Yoo's arguments without deciding his case.

As to Jose Padilla, the court side-stepped determining what would happen to him upon re-file in South Carolina. Given what they said in Hamedi though, it seems that the justices will rule 5-4 that the government has a right to hold him without having to charge him criminally for treason, but it's not clear what the military can do with him though.