November 1, 2004
Private: In Clarence Thomas' America, Judicial Review is Narrowly Circumscribed
column by John Elias, Blog Editor
For nearly three years, the Justice Department held in custody Yaser Esam Hamdi, a man whom the Washington Post described as "nothing more than a Taliban foot soldier, neither a major national security threat nor a likely intelligence asset of ongoing consequence." The government's sole basis for holding Hamdi was a two-page memo written by a mid-level Defense Department bureaucrat with no personal knowledge of the case.
But if Justice Thomas's view had prevailed, Hamdi would still be in the brig. Thomas, dissenting in Hamdi v. Rumsfeld, accepted the government's claim that its decision to hold Hamdi was not subject to judicial review. As Professor Chemerinsky noted previously on ACSBlog, "It is telling that in the three cases decided on June 28, only one Justice--Clarence Thomas--accepted the . . . claim of inherent authority."
According to Thomas, the determination of whether Hamdi is an enemy combatant belongs solely to the executive branch, as does the decision of how to treat him upon that determination. Advocating a complete abdication of judicial review in cases closely tied to national security, his dissent asserts, "This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision." Thomas also seems to question the fidelity of his compatriots on the federal bench, asserting that "Nor can courts sit in camera in order to be taken into executive confidences."
The Hamdi plurality took a very different view. Applying the Eldridge balancing test for determining what constitutes due process, the Court held that citizens detained in the U.S. as enemy combatants must be given a meaningful opportunity to challenge, before a neutral decisionmaker, the factual basis for their detention. The Court noted that Hamdi had a reasonable fear of "perpetual detention."
Rather than foster a system of separation of powers, adopting executive supremacy would undercut necessary safeguards. The Court noted that "history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse . . . . It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."
And unlike Thomas, the plurality also had confidence in the discretion of the federal judiciary in national security matters. They saw "no reason to doubt that courts faced with these sensitive matters will pay proper heed" both to their confidential nature and to the essential liberty interests they implicate.
The Washington Post condemns the treatment that the majority rejected and that Justice Thomas would affirm: "What remains objectionable -- what looms as more objectionable than ever, now that the government has acknowledged Mr. Hamdi's unimportance -- is the unnecessary assault on civil liberties . . . . It is unpardonable to have staked out such ground over someone whom, it turns out, the government considers so unthreatening."
Rather than maintaining constant vigilence of civil liberties, in Justice Thomas' America, Supreme Court review of national security decisions could be reduced to a rubber stamp.