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View Diary: Judges Tell Congress: Don't Suspend Habeas Corpus (201 comments)

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  •  You don't have to understand the rest of the (1+ / 0-)
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    opinions in Hamdi to understand their rather clear language on only Congress being able to suspend habeas.

    Here is language from the plurality opinion of Justice O'Connor, writing for four justices:

    Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions. See St. Cyr, 533 U.S., at 301 (“At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest”).

    Here's language from the dissent of Justice Scalia, writing for two justices:

    Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge.

    Further,

    It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus.

    Six justices are a majority of the court.  And the other three justices, in the dissent of Justice Thomas and the concurrence of Justice Souter, were silent on the issue, and did not claim that the president could legitimately suspend habeas.

    Katrina was America's Chernobyl.

    by lysias on Tue Sep 19, 2006 at 07:26:06 AM PDT

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    •  Although Justice Thomas's dissent, with its (1+ / 0-)
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      adoption of the unitary executive theory in the matter of treatment of detainees, asserts that the president has powers that amount to the practical equivalent of the suspension of habeas corpus (although with the congressional authorization he thinks was given by the Authorization to Use Military Force).  Thomas, however, was only writing for himself in Hamdi.

      Katrina was America's Chernobyl.

      by lysias on Tue Sep 19, 2006 at 07:38:31 AM PDT

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