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[self-portrait]Scrivener's Error Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.
28 June 2004

12:51 [GMT-6]

Room 101
Like Gaul—or, more to the point, gall—the detainee mess is divided into three parts. One division is the obvious one: Hamdi (PDF, 822kb), Padilla (PDF, 517kb), and Rasul (PDF, 520kb). That's certainly the way the three decisions will be divided in the media. However, there is a much more logical and important division into three parts: civil procedure, government power, and military necessity. Just to be different, that's how I'm dividing things. I also think it gives some interesting perspectives on exactly what was going on.

Before getting started, though, the decisions are still going to leave considerable fragmentation behind. There was a clear majority vote in each case: that Hamdi must be given access to the courts; that Padilla must be refiled in South Carolina, with no decision on the merits, for lack of jurisdiction in the Southern District of New York; and that Rasul and other detainees at Gitmo have the right to challenge their detentions in court. However, only one of these decisions (Rasul) provides a clear and unmistakeable majority rationale; the spate of concurrences and mixed opinions undercuts the authority of the decision in those cases. If the government can take anything positive away from these matters—and, contrary to the media, I think none of these came even close to validating a seriously contested government action—it is that the fragmentation indicates that it just might prevail at trial.

That, in the end, is the real meaning of today's two hundred pages: The detainees have another chance to lose. Or to win; but it's arguable that the fact of their detention is a loss, as they will have lost their freedom for a nontrivial period of time even if they ultimately win.

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