Justice Scalia and Justice

Over at al jazeera is an OpEd on US Supreme Court Justice Antonin Scalia. Frankly, it is written by someone who does not seem to be an admirer, Professor Corey Robin, who teaches political science at Brooklyn College.

Scalia takes special pleasure in unhappy consequences. He relishes difficulty and dislikes anyone who would diminish or deny it. In Hamdi v. Rumsfeld, a plurality of the Court took what Scalia thought was a squishy position on executive power during wartime. The Court ruled that the Authorisation for the Use of Military Force, passed by Congress after 9/11, empowered the president to detain US citizens indefinitely as "illegal enemy combatants" without trying them in a court of law. It also ruled, however, that such citizens were entitled to due process and could challenge their detention before some kind of tribunal.

Scalia was livid. Writing against the plurality - as well as the Bush administration and fellow conservatives on the Court - he insisted that a government at war, even one as unconventional as the war on terror, had two, and only two, ways to hold a citizen: try him in a court of law or have Congress suspend the writ of habeas corpus. Live by the rules of due process, in other words, or suspend them. Take a stand, make a choice.

But the Court weaseled out of that choice, making life easier for the government and itself. Congress and the president could act as if habeas corpus were suspended, without having to suspend it, and the Court could act as if the writ hadn't been suspended thanks to a faux due process of military tribunals. More than coloring outside the lines of the Constitution, it was the Court's "Mr. Fix-It Mentality", in Scalia's words, its "mission to Make Everything Come Out Right", that enraged him.

I, for one, agree with the Justice on this.

That said, I feel that someone who takes the field of battle against US forces has committed an act of war against the US and should be put in a POW camp for the duration, plus.  I would not be as extreme as the Soviet Union, which kept German POWs from World War II until 1956, more than a decade.  US Citizens who commit acts against the US Government and the People of the United States, on US territory, in support of an enemy, should be tried for treason.  Let the chips fall where they may.

Regards  —  Cliff