Having finally had time to sit down and read Hamdi v. Rumsfeld its clear to me that the press reports so far have been confusing at best and misleading at worst. While I am heartened that the court has decided that there are some limits to the power of our executive, their decision is far from the stalwart defense of our traditional understanding of civil liberties that it has been presented as. I must express that I share the cynicism of the Russian commentator whose article I posted in spite of that commentator's hypocrisy.

My (apparently incorrect) understand of how things work in this country is that the legislative branch makes the laws (within the framework of the constitution), the executive enforces them, and the judicial interprets, applies, and upholds them. In this case the legislative passed a vague authorization for the use of military force against Al'Q and the T. From this the executive invented an entirely unprecedented and undefined legal status for prisoners. We'll call this "legislating from the Oval Office." In this decision the judicial has upheld the existence of this undefined status and invented a vaguely defined and unprecedented legal standard to go along with it. We'll call this "legislating from the bench."

From now on, as long as Congress has authorized the President to use "force" against an "enemy" the President may name any citizen an "enemy combatant" and place them in prison. The President is required to present its case against these individuals to a neutral decision maker (which need not be a civilian court), but the standard in these cases is "guilty until proven innocent." This is an enormously important precedent that will continue to impact our history forever.

I do not recall "guilty until proven innocent" ever being a part of how Americans view justice. Nor do I recall that the Supreme Court has the power to invent standards like this for cases of this sort. Missing from every event leading up to this moment (the solidification of a new legal standard for certain prisoners in our justice system) is the explanation of why. Why won't standard POW processes work for "combatants" in Afghanistan? Why do we need a new standard? Why is this situation so significantly different from any we've faced in the past? Justification is what you'd get if this new creation was the product of a normal legislative process. Instead what we have is the technical assertion of power by the executive and the judicial, with no more explanation then "these are bad people."

Maybe the court has reached the right balance here and this is the standard we ought to have. Its certainly preferable to me then Justice Thomas's unsaid statement that the only recourse that you have against unreasonable executive detention is to Impeach him. (If Thomas's well referenced dissent is correct, then I would say we are in need of new laws immediately!) However, I think it ought to have gone through the legislature, and that it ought to have been birthed in the open, with the traditional discussion of ends and means that is typically afforded a democracy when creating a new basic legal framework.

Repeating my basic point to ram it home: A new legal standard has been created in our justice system. It applies to enemies of the state. The standard is guilty until proven innocent. Its use requires Congressional authorization, but that authorization need not be specific. This is a watershed event that will inform future generation's basic understanding of what the Constitution means.

Hamdi v. Rumsfeld - Now THATS legislating from the bench!