As many readers probably know, Scott Turow has an essay in yesterday's New York Times in which he suggests that Justice Scalia may end up being one of the most important defenders of civil liberties on the Court, especially in future "war on terror" cases. Turow makes some interesting points about Scalia opinions in a number of recent civil liberties cases, including Apprendi v. New Jersey. But he seems to place the most weight on Justice Scalia's dissenting opinion in the 2004 case Hamdi v. Rumsfeld. And there, I think Turow is quite wrong. (Warning/shameless plug: much of what follows in this post is derived from a recent article of mine, "Hamdi's Habeas Puzzle: Suspension as Authorization?" 91 Cornell L. Rev. 411 (2006). A draft of the article is available here.)
As most readers probably know, Hamdi involved a challenge to the executive branch's detention, without charge, of a U.S. citizen alleged to be an enemy combatant. The case divided the Court, producing four opinions in all. A majority of the Court ultimately agreed that Congress authorized this sort of detention when it passed the Authorization for Use of Military Force (AUMF) in the immediate aftermath of 9/11, but that detainees like Hamdi have a due process right to challenge their detention and the accuracy of their designation as enemy combatants. Justice Scalia dissented in an opinion joined by Justice Stevens. In his view, it was irrelevant whether Congress had intended to authorize enemy combatant detention when it passed the AUMF, for Congress simply cannot authorize such detention by ordinary legislation. Instead, he maintained that the government's only options with respect to U.S. citizen detainees are to (1) charge them criminally, (2) release them, or (3) convince Congress to suspend habeas corpus.
Many commentators (including, apparently, Turow) have hailed Justice Scalia's opinion as a paragon of civil libertarianism. They often do this by ignoring the third option listed above. Turow, for example, reads Justice Scalia to say that when it comes to a U.S. citizen like Hamdi, the government "must press criminal charges or let him go." But that's not complete. In several places throughout his opinion, Justice Scalia made it clear that another option would be for Congress to suspend the writ of habeas corpus. For example, he stated early in his opinion that, "[a]bsent suspension, . . . the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge." (My article, linked to above, discusses this and other similar passages at length.) In short, Justice Scalia's position is that suspending the writ of habeas corpus is necessary and sufficient to authorize the otherwise-unlawful extrajudicial detention of alleged enemy combatants.
I think Justice Scalia's view of suspending the writ, which I call "suspension as authorization," is both formally untenable and functionally undesirable. Formally speaking, suspending the writ simply removes a judicial remedy, albeit a very important one. It does not change the legality of the underlying government conduct. If, as Justice Scalia opined, the extrajudicial detention of U.S. citizen enemy combatants is not something Congress can authorize by legislation like the AUMF, removing the principal remedy against unlawful detention does not make the detention lawful.
Functionally speaking, Justice Scalia's approach effectively invites Congress to read one branch of government (the judiciary) out of the equation in order for another (the executive) to act. But that is contrary to the basic principle of checks and balances established by the constitutional separation of powers. The problem is even worse when one recognizes that, in Justice Scalia's view, Congress alone has the authority to decide whether the predicates for suspending the writ have been met. The Suspension Clause provides that habeas shall not be suspended "unless when in cases of rebellion or invasion the public safety may require it." In Hamdi, Justice Scalia took the position that the courts have no role to play in second-guessing Congress's determination that such a "rebellion or invasion" exists. On that view, if Congress decides that the global war on terror itself amounts to an "invasion" requiring the suspension of the writ, its determination is conclusive on the judiciary. And once the writ is suspended, otherwise illegal extrajudicial detention becomes lawful, with the courts having no role to play. Hardly a bold stand for civil libertarianism.
(I should note that there are two new articles about to appear that may well bear on these matters. David Shapiro of Harvard has a piece forthcoming in the Notre Dame Law Review apparently arguing, contra me, that suspending the writ does affect the underlying legality of the detention, at least in some respects. And Amanda Tyler has a piece forthcoming in the Stanford Law Review arguing, contra Scalia, that suspension of the writ is not a political question. I'm looking forward to reading both pieces when they appear.)