[Marxism] The presidential election and the Supreme Court

Suresh borhyaenid at yahoo.com
Tue Jun 29 10:40:40 MDT 2004

Yet, the Supreme Court did not rule on the most
essential question; whether the indefinite detention
of 'enemy combatants', including U.S. citizens, under
the sole discretion of the executive branch is
constitutional or not. It ducked this issue, just as
it had dodged the case challenging the use of the
words "under God" in the Pledge of Allegiance - on a
technical basis.

In Rumsfeld v. Padilla, Chief Justice Rehnquist
delievered the majority opinion and wrote: 

"Respondent Jose Padilla is a United States citizen
detained by the Department of Defense pursuant to the
President's determination that he is an "enemy
combatant" who conspired with al Qaeda to carry out
terrorist attacks in the United States. We confront
two questions: First, did Padilla properly file his
habeas petition in the Southern District of New York;
and second, did the President possess authority to
detain Padilla militarily. We answer the threshold
question in the negative and thus do not reach the
second question presented.


The federal habeas statute straightforwardly provides
that the proper respondent to a habeas petition is
"the person who has custody over [the petitioner]." 28
U. S. C. §2242; see also §2243 ("The writ, or order to
show cause shall be directed to the person having
custody of the person detained"). The consistent use
of the definite article in reference to the custodian
indicates that there is generally only one proper
respondent to a given prisoner's habeas petition. This
custodian, moreover, is "the person" with the ability
to produce the prisoner's body before the habeas
court. Ibid. We summed up the plain language of the
habeas statute over 100 years ago in this way:
"[T]hese provisions contemplate a proceeding against
some person who has the immediate custody of the party
detained, with the power to produce the body of such
party before the court or judge, that he may be
liberated if no sufficient reason is shown to the
contrary." Wales v. Whitney, 114 U. S. 564, 574 (1885)
(emphasis added); see also Braden v. 30th Judicial
Circuit Court of Ky., 410 U. S. 484, 494-495 (1973)
("The writ of habeas corpus" acts upon "the person who
holds [the detainee] in what is alleged to be unlawful
custody," citing Wales, supra, at 574); Braden, supra,
at 495 (" '[T]his writ ... is directed to ... [the]
jailer,' " quoting In the Matter of Jackson, 15 Mich.
417, 439-440 (1867)).

     In accord with the statutory language and Wales'
immediate custodian rule, longstanding practice
confirms that in habeas challenges to present physical
confinement--"core challenges"--the default rule is
that the proper respondent is the warden of the
facility where the prisoner is being held, not the
Attorney General or some other remote supervisory

So, since the President and Sec. of Defense Rumsfeld
are not Padilla's immediate custodians, and are
outside the jurisdiction of the Southern District of
NY in which the petition was filed, the challenge has
no legal basis.

This is what Justice Stevens wrote, on behalf of the
dissenting four justices:

The petition for a writ of habeas corpus filed in this
case raises questions of profound importance to the
Nation. The arguments set forth by the Court do not
justify avoidance of our duty to answer those
questions. It is quite wrong to characterize the
proceeding as a "simple challenge to physical
custody," ante, at 13, that should be resolved by
slavish application of a "bright-line rule," ante, at
21, designed to prevent "rampant forum shopping" by
litigious prison inmates, ante, at 19. As the Court's
opinion itself demonstrates, that rule is riddled with
exceptions fashioned to protect the high office of the
Great Writ. This is an exceptional case that we
clearly have jurisdiction to decide.


Although the Court purports to be enforcing a
"bright-line rule" governing district courts'
jurisdiction, ante, at 21, an examination of its
opinion reveals that the line is far from bright.
Faced with a series of precedents emphasizing the
writ's "scope and flexibility," Harris, 394 U. S., at
291, the Court is forced to acknowledge the numerous
exceptions we have made to the immediate custodian
rule. The rule does not apply, the Court admits, when
physical custody is not at issue, ante, at 8, or when
American citizens are confined overseas, ante, at 19,
n. 16, or when the petitioner has been transferred
after filing, ante, at 12-13, or when the custodian is
" 'present' " in the district through his agents'
conduct, ante, at 17. In recognizing exception upon
exception and corollaries to corollaries, the Court
itself persuasively demonstrates that the rule is not
ironclad. It is, instead, a workable general rule that
frequently gives way outside the context of " 'core
challenges' " to Executive confinement. Ante, at 6.

     In the Court's view, respondent's detention falls
within the category of " 'core challenges' " because
it is "not unique in any way that would provide
arguable basis for a departure from the immediate
custodian rule." Ante, at 13. It is, however,
disingenuous at best to classify respondent's petition
with run-of-the-mill collateral attacks on federal
criminal convictions. On the contrary, this case is
singular not only because it calls into question
decisions made by the Secretary himself, but also
because those decisions have created a unique and
unprecedented threat to the freedom of every American

     "[W]e have consistently rejected interpretations
of the habeas corpus statute that would suffocate the
writ in stifling formalisms or hobble its
effectiveness with the manacles of arcane and
scholastic procedural requirements." Hensley v.
Municipal Court, San Jose-Milpitas Judicial Dist.,
Santa Clara Cty., 411 U. S. 345, 350 (1973). With
respect to the custody requirement, we have declined
to adopt a strict reading of Wales v. Whitney, 114 U.
S. 564 (1885), see Hensley, 411 U. S., at 350, n. 8,
and instead have favored a more functional approach
that focuses on the person with the power to produce
the body. See Endo, 323 U. S., at 306-307.4 In this
case, the President entrusted the Secretary of Defense
with control over respondent. To that end, the
Secretary deployed Defense Department personnel to the
Southern District with instructions to transfer
respondent to South Carolina. Under the President's
order, only the Secretary--not a judge, not a
prosecutor, not a warden--has had a say in determining
respondent's location. As the District Court observed,
Secretary Rumsfeld has publicly shown "both his
familiarity with the circumstances of Padilla's
detention, and his personal involvement in the
handling of Padilla's case." 233 F. Supp. 2d, at 574.
Having "emphasized and jealously guarded" the Great
Writ's "ability to cut through barriers of form and
procedural mazes," Harris, 394 U. S., at 291, surely
we should acknowledge that the writ reaches the
Secretary as the relevant custodian in this case.

     Since the Secretary is a proper custodian, the
question whether the petition was appropriately filed
in the Southern District is easily answered. "So long
as the custodian can be reached by service of process,
the court can issue a writ 'within its jurisdiction'
requiring that the prisoner be brought before the
court for a hearing on his claim . . . even if the
prisoner himself is confined outside the court's
territorial jurisdiction." Braden v. 30th Judicial
Circuit Court of Ky., 410 U. S. 484, 495 (1973).5 See
also Endo, 323 U. S., at 306 ("[T]he court may act if
there is a respondent within reach of its process who
has custody of the petitioner"). In this case,
Secretary Rumsfeld no doubt has sufficient contacts
with the Southern District properly to be served with
process there. The Secretary, after all, ordered
military personnel to that forum to seize and remove


     Whether respondent is entitled to immediate
release is a question that reasonable jurists may
answer in different ways.8 There is, however, only one
possible answer to the question whether he is entitled
to a hearing on the justification for his detention.9

     At stake in this case is nothing less than the
essence of a free society. Even more important than
the method of selecting the people's rulers and their
successors is the character of the constraints imposed
on the Executive by the rule of law. Unconstrained
Executive detention for the purpose of investigating
and preventing subversive activity is the hallmark of
the Star Chamber.10 Access to counsel for the purpose
of protecting the citizen from official mistakes and
mistreatment is the hallmark of due process.

     Executive detention of subversive citizens, like
detention of enemy soldiers to keep them off the
battlefield, may sometimes be justified to prevent
persons from launching or becoming missiles of
destruction. It may not, however, be justified by the
naked interest in using unlawful procedures to extract
information. Incommunicado detention for months on end
is such a procedure. Whether the information so
procured is more or less reliable than that acquired
by more extreme forms of torture is of no consequence.
For if this Nation is to remain true to the ideals
symbolized by its flag, it must not wield the tools of
tyrants even to resist an assault by the forces of

I respectfully dissent."



In general, the modus operandi of the U.S. government
in recent years, especially under this administration,
has been to express outrageous executive powers only
to have to make partial compromises afterwards, due to
SCOTUS decisions or pressure from Congress, the media,
the public, etc. We saw this phenomenon as well, at
the U.N., and in a way also now in Iraq. Even if the
President only retains a few of the powers originally
invoked after 9/11, this 'two steps forward - one step
back' approach has a clear momentum and trajectory.
And by recalling the reaction of President Clinton to
the Oklahoma City bombing and the passing of the
Anti-Terrorism Act, it becomes clear that there is a
bi-partisan character to this method.


Do you Yahoo!?
Yahoo! Mail - 50x more storage than other providers!

More information about the Marxism mailing list