Habeaus Corpas Essay

6619 Words Oct 26th, 2012 27 Pages
The War against Terror as War against the Constitution
Jackson A. Niday, II

Abstract: This essay examines rhetorical dynamics in the 2004 US Supreme Court case Hamdi v. Rumsfeld. News reports suggested the court split 8-1 or 6-3. However, case texts show substantive disagreements created a 4-2-2-1 split in the court. Moreover, while the justices on the bench split into four camps rather than two, those camps were not defined along ideological lines. This essay argues that pragmatism, the legal philosophy that held sway in the case, achieved practical expediency at the expense of judicial and constitutional coherency. In the end, the court found a majority through neither persuasion nor principled conviction but, rather, through
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Rumsfeld, Rasul v. Bush, and Rumsfeld v. Padilla. While no case before the Supreme Court can be deemed trivial, the Administration’s war of words made these cases particularly heady. In deploying its elocutionary arsenal, the Administration managed to consign some of the most hallowed tenets of the Constitution to the scales of Justice. These three cases are cut from common cloth, but the focus here will be on the one I believe to be of greatest constitutional substance: Hamdi v. Rumsfeld. Before the Court in the Hamdi case were decisions on habeas corpus; at issue, questions of separation of powers and of Constitutional rights; at stake, the Administration’s latitude in its war on terror, on one hand, and the status of individual rights in a free society on the other.

Yaser Esam Hamdi, a US citizen, was captured as he opposed US forces in Afghanistan, sometime late in 2001. He was then detained under the ‘‘enemy combatant’’ label used by the Bush Administration. At the time his case came before the US Supreme Court, Hamdi had been detained for approximately three years. While the story of Hamdi the man, from the time of his capture to the eventual revocation of his US citizenship, is noteworthy in itself, the case of Hamdi—in terms of its language, its arguments, its conclusions, and its implications—is of

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