#dailyupdate: Scalia re enemy combatant due process rights

“In the Founders’ view, the “blessings of liberty” were threatened by “those military establishments which must gradually poison its very fountain.” The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution’s authorization of standing armies in peacetime.” Scalia dissent in Hamdi v. Rumsfeld.

He then went on to attack the suggestion that the majority opinion provided: a new process that would meet Due Process minimum requirements. “This judicial remediation of executive default is unheard of. The role of habeas corpus is to determine the legality of executive detention, not to supply the omitted process necessary to make it legal.”

When reading the majority opinion, I wanted to know why the case does not start off with an analysis of why a US citizen fighting against the US in active combat does not get classified as a traitor, charged with a crime of treason and instead is held as a POW – captured in an active combat zone. Is it because the USG simply does not want to submit to a “full-blown” criminal trial?

Much of the reasoning in the majority opinion would make more sense if this had been addressed, but it wasn’t and the government’s interest in avoiding a trial is simply not defended to any degree that convinced me. The idea of accepting, and in fact allowing, a deprivation of constitutionally-protected rights because the military does not want to go to court is exactly why Scalia dissented.


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