I think Mark and I agree more than he thinks. On my initial read, the Gitmo decision (Rasul) is wholly unconvincing, and Scalia’s dissent in that case is entirely correct. Under Johnson v. Eisenstrager, detainees outside of U.S. sovereign territory are beyond the reach of the existing habeas statute. If this results in some injustice — as the Court’s majority contends — it is for Congress, not the courts to correct it.
As for the other cases, Of course the executive has greater power when acting as “commander-in-chief” than in other contexts, but this power is not unlimited, and is itself at its peak when Congress accedes to executive authority. (If we want to quote Justice Jackson, on this I would point to his concurrence in the Youngstown steel seizure case.) In the Hamdi and Padilla cases Congress has not authorized such actions. Instead, it punted. As Scalia argues, the executive’s substantial authority over U.S. citizens does not include detention for an unlimited duration solely for the purposes of interrogation merely because the individuals are declared “enemy combatants” by the executive. If the government’s case is so strong, why not simply charge them with treason? That’s hardly an invitation for judicial review run amok.
One broader point: The framers of the Constitution were not unaware of the exigencies of war. To the contrary, they were well aware of the strains armed conflict or revolution could place on the established legal order and extensively debated the scope of executive authority over the armed forces. Further, they provided for the suspension of the writ of habeas corpus, but only by Congress. I wholly agree that the courts have overstepped their bounds in many areas, that some lower courts regularly go off the rails on these sorts of issues, and that the Gitmo decision may suggest the outrageous conclusion that the Court’s jurisdiction is whatever the Court thinks it is. Yet I also maintain that the Constitution’s text and structure are paramount, and the important ends of fighting terrorism do not justify the means of stretching constitutional limiations like silly putty. In some cases that may limit executive authority, but that is what it means to have a government of laws, not of men.