0:00:00.5 S?: We'll hear argument first this morning number 036696, Yaser Esam Hamdi v. Donald Rumsfeld.

0:00:13.6 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about Hamdi v. Rumsfeld. The case centers on a man who was captured in Afghanistan, where he had allegedly joined the Taliban.

0:00:27.7 S?: Petitioner Hamdi is a citizen who has been held over two years in the United States with no opportunity to be heard as to the facts on which his detention is based.

0:00:39.4 Leon: An American accused of crimes against the state would be charged with treason and afforded a lawyer and a trial. A foreign prisoner of war would be protected by the Geneva Conventions. But the Supreme Court's holding in this case allowed for Hamdi and other prisoners to be treated as neither and to instead be classified as enemy combatants who can be held in a kind of legal limbo.

0:01:02.2 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:09.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused America's lofty promise to fall like a dying satellite, slowly crashing back at earth.

0:01:19.3 Michael: Nice.

0:01:20.0 Peter: I am Peter, I'm here with Michael.

0:01:23.5 Michael: Hey, everybody.

0:01:24.4 Peter: And Rhiannon.

0:01:27.1 Rhiannon: Hello. Hi.

0:01:28.5 Peter: Michael, how are the new digs, man?

0:01:28.5 Michael: I'm still in my wife's parents' house, I'm staying with the in-laws, but hopefully will be in in the next couple of days, and then I can give a full review. I will say when I did a walk-through there was a roadrunner right outside our front door, and that was pretty cool. I was like, I know I'm in the Southwest now.

0:01:48.1 Peter: I don't believe that those are real, so I'm not... I don't even know what to think of that.

0:01:53.3 Michael: Do you know what else are real? It's tumbleweeds, which I didn't realize. Like when you're a kid, you watch cartoons and you see, and you're like, that can't be real, and if it is, it's certainly not a big spear that just rolls around. But then you go to the fucking Southwest and, let me tell you, there are very large spears that are just fucking... They're just rolling around as like in parking lots and shit.

0:02:18.1 Peter: That's how they spread seeds or something, right? I believe that's it.

0:02:21.3 Michael: It doesn't feel real.

0:02:22.7 Peter: I'm not a scientist, but that's what I think they're doing.

0:02:25.8 Rhiannon: Okay. Yeah, yeah, I think that's enough horticulture for one 5-4 episode.

0:02:32.4 Michael: We got some bird wildlife, we got...

0:02:33.6 Peter: What else is going on down there?

0:02:36.9 Michael: A hailstorm today.

0:02:41.9 Peter: Alright, today's case is Hamdi v. Rumsfeld. This is a case about the indefinite detention of American citizens in connection with the War on Terror. Yaser Hamdi is an American citizen, but like many of us, he had some disagreements with the American government, and while a lot of us go traditional routes like voting or attending city council meetings to try to foster change, he went a little bit unorthodox and allegedly joined the Taliban, right before 9/11 happened.

0:03:17.7 Michael: Like three weeks before 9/11 happened. Really good timing, man.

0:03:22.8 Peter: Which I gotta say, I don't want to convey too much empathy for someone who joined the Taliban, but that is bad luck as far as joining the Taliban goes. You join up and then 9/11 happens?

0:03:33.7 Rhiannon: A little bit cursed.

0:03:33.8 Peter: Yeah.

0:03:35.3 Michael: You're like, man, I'm going to shoot some guns in the fucking desert and it'll be cool as shit, and then it's like America's coming, oh, shit.

0:03:46.0 Peter: So 9/11 happens, the war in Afghanistan starts, and Hamdi is captured and eventually comes into the custody of the United States' military, where he was treated the way the United States military treats enemy combatants, so thrown into a cell indefinitely and without any process. Then his father filed a writ of habeas corpus. Habeas corpus is the legal mechanism for challenging the lawfulness of someone's detention.

0:04:16.3 Peter: So the argument is, hey, Hamdi is a US citizen, you can't just detain him without due process. And in response, the government says, hey, we're at war, Congress authorized it, we're allowed to detain this guy as an enemy combatant, and we don't owe him any due process at all, right? You need me on that wall. That's what they're doing.

0:04:38.8 Rhiannon: Yeah, that's right.

0:04:41.1 Peter: And this winds its way up to the Supreme Court, and in a decision written by Sandra Day O'Connor, the Court allows for his detention as long as, quote, active hostilities continue, thus paving the legal path for the near indefinite detention of American citizens during wartime.

0:05:00.3 Michael: What are you talking about? Active hostilities, how long can that last?

0:05:05.7 Rhiannon: Right, it's just until active hostilities are over, don't worry.

0:05:08.0 Peter: Until Joe Biden loses the war. Now, a lot of civil libertarians actually viewed Hamdi as win, especially initially, and the reason for that is because the Court said that you have to give Hamdi some process, there has to be sort of half a due process, and what they say is, there needs to be a tribunal to determine whether he is in fact an enemy combatant. So the quote unquote win is that the military doesn't get to just say he's an enemy combatant, they have to have a tribunal and determine that he is. But the problem there is that all it takes is a very light evidentiary showing in front of some military tribunal and then they can hold a United States citizen indefinitely.

0:05:56.0 Michael: That's right.

0:05:57.4 Peter: So Rhi, some context here perhaps might be helpful?

0:06:00.3 Rhiannon: Sure, yeah, yeah, yeah. Okay, let's start with Yaser Hamdi. So Yaser Hamdi, like Peter said, is a US citizen. He was born in Baton Rouge, Louisiana, to parents who were from Saudi Arabia. So as a young child, he moved with his family back to Saudi Arabia, and he grew up there. So he was 20 years old in that summer of 2001 when he traveled to Afghanistan and reportedly joined a Taliban training camp. But just a few months later, the US invaded Afghanistan, and Hamdi was captured by Afghan Northern Alliance forces, and he was taken to a prison complex in Afghanistan.

0:06:39.5 Rhiannon: Now, a prison uprising occurred and that turned into a days-long military battle with the US military, during which Hamdi surrendered to American forces, and he told them that he was American, but like Peter said, he is immediately classified by the US military as an enemy combatant. Now, enemy combatant was a sort of special designation used by the Bush administration at the time, and this special designation was given to people who were caught while engaging in war against the US, but the important sort of operative part of the classification is that these people, the Bush administration argued, are not protected by the Geneva conventions or protections that are given to prisoners of the war typically.

0:07:28.2 Michael: I'm sorry, I'm sorry. It's so ridiculous. It's like, yeah, we're at war. Yeah, these are our prisoners from that war, but if we call them enemy combatants, then they're not actually prisoners of war and subject to the normal rules that govern forces prisoners of war. That was the brightest minds. John Yoo, baby.

0:07:52.3 Rhiannon: High-level intellectual stuff from the Bush administration. So Hamdi was transported from Afghanistan to Guantanamo Bay initially, but then he was transferred to a jail at a military base in Virginia in April of 2002. Now, the Bush administration denied him access to an attorney until December 2003, when the Pentagon announced that Hamdi's quote intelligence value had been exhausted and that giving him a lawyer would not harm national security, so...

0:08:29.3 Peter: God bless America, baby.

0:08:30.8 Rhiannon: Right, yeah, yeah. So more than two years after Hamdi was incarcerated, he met with an attorney for the first time, and note also that during all of this time that he's been incarcerated, Hamdi has not been charged with a crime, he's just being held as an enemy combatant. So like Peter said, Hamdi's father filed a writ of habeas corpus, which is a special kind of legal filing in a criminal case, and we'll talk about that more in a second, but he files this writ in federal court challenging his son's detention and saying that as a US citizen Hamdi has not been given his constitutional due process.

0:09:09.2 Michael: Yeah, and Hamdi, it seems like he was a Taliban fighter. I don't know, and honestly, I don't care, I don't think it's actually important to this case, we'll discuss that later, but it's worth noting, emphasizing, rather, Rhi had already said it, he wasn't picked up by US troops, he was picked up by the Northern Alliance, which was like an anti-Taliban Afghan military outfit. And the thing is, Americans were paying very large bounties, like hundreds of thousands of dollars, to the Northern Alliance for prisoners, and we know now that they were just rounding up people to collect the bounties.

0:09:44.9 Michael: There was a report in the New Yorker that I'm just going to read from: The Northern Alliance would jam so many detainees into Conex shipping containers that they started to die of suffocation. Not wanting to lose their bounties, the captors sprayed the tops of the boxes with machine guns to open ventilation holes. A lot of these prisoners were actually looking forward to being handed over to the Americans, figuring it would be pretty obvious they weren't Al-Qaida, yet hundreds of them were sent to Guantanamo Bay.

0:10:14.8 Michael: Similarly, there's infamously a case of 17 Uighurs, who are like ethnic minorities who fled China to Afghanistan, their homes in Afghanistan were bombed by the US, so they fled across the border to Pakistan, where they were picked up by a Pakistani border patrol and handed over to the US as terrorists. Here were these people who have just been chased out of their homes multiple times, they end up in Guantanamo Bay, and almost immediately we figure out that they are not terrorists, but then they were stuck there for fucking 10 years.

0:10:48.1 Rhiannon: Right, so like I said, this isn't to say that Hamdi is one of these poor souls who gets scooped up in all this madness and falsely rounded up and thrown in Gitmo. But it's important context for understanding here, right, like when we're talking about the government's power to hold these people as long as it wants, without any process at all, or only the bare minimum process. This is where they're coming from, right, this is how they got there, and I think that's important to understand is that it was total madness.

0:11:21.0 Peter: Yeah, and a lot's been said about post-9/11 culture in America, the American culture in the immediate aftermath of 9/11. But it plays a big role here, I think. So we should talk about it a bit, especially 'cause I think a lot of our listeners, young law students and lawyers who perhaps were just a tad too young to remember exactly what this country was like, the best way to describe the political atmosphere right after 9/11 was that it was more like team sports than anything else, right? Everyone across the country put up little flags in front of their homes, flags in shop windows.

0:12:00.0 Peter: Remember how in the beginning of COVID, every commercial was about togetherness and stuff, like no matter what the product was. After 9/11 it was that, but the sentiment was like patriotism, it was like, hey, America rules, greatest and freest country on earth. So head on down to your local grocery store, buy some Dawn dish soap and let's go kill some fucking Muslims together, huh?

0:12:23.5 Rhiannon: That's right, that's right. Yeah.

0:12:26.7 Leon: For Muslims, it was really like the great othering, like hate crimes against Muslims and brown people skyrocketed, hate crimes against people who look vaguely Muslim, like Sikhs, never return to their pre-9/11 baseline. If you were remotely foreign-looking, people were constantly demanding implicit and explicit demonstrations of allegiance from you, any sort of heterodox thinking about the War on Terror was punished, as much as like cancel culture is a right-wing complaint these days.

0:12:58.2 Peter: Like the first cancellation of the modern political era that I can recall was Bill Maher on his little HBO panel show. Someone said, well, the terrorists, these terrorists were cowards. And Bill Maher was like, we're the ones lobbing cruise missiles from miles away, they stayed in a plane while it hit the buildings, like that's not really cowardly. And his show got canceled, his show got canceled for that. The fucking Dixie Chicks opposing the Iraq war got them boycotted by all their fans, and France not committing troops to the Iraq War resulted in Congress changing the name of French fries in the congressional cafeteria.

0:13:37.9 Michael: Freedom fries, baby.

0:13:41.3 Peter: The American brain was absolutely diseased, and this is the height of it.

0:13:46.2 Rhiannon: Yeah, so I was in eighth grade on 9/11. Being Middle Eastern, being Arab in the United States, being Muslim, looking Muslim, right, was an absolutely crazy experience, frankly, for a long time. I mean, federal law enforcement was questioning members of the Muslim community all over the country. I have personal experience with this, people I know, people I love, were questioned by the FBI in the days and months after 9/11, people who had no connection whatsoever, obviously, now came under a nation's suspicion by very nature of the fact of just being from a different place in the world, right? I think it really actually fundamentally changed the experience of being an immigrant, being Muslim, being Middle Eastern in the US.

0:14:37.7 Peter: Being in school, being young during this period was very odd, because every classroom discussion the teacher would be like, so, Ginni, what do you think we should do? And she was like, no, I think we should probably kill them all and nuke the entire Middle East, and the teacher would be like, mmm, interesting, okay, and what about you, Robert? The casualness with which the mass murder of Middle Eastern people was discussed, it really can't be overstated.

0:15:06.9 Rhiannon: Yeah, it was rough.

0:15:08.1 Peter: You need to keep that in mind here. This comes down in 2004, and so you're just... You're in the glow of all of that. So I mentioned above, and we've talked about it before, but habeas corpus is the fancy Latin term for how you challenge the lawfulness of your detention. You file a writ of habeas corpus, and the idea is that when you do, the government must then justify your imprisonment. It has long-standing roots in the law, it's in the Constitution, as is the right for the government to suspend it in times of crisis. That's only ever happened once, Lincoln did it during the Civil War.

0:15:47.1 Peter: So what's happening here is simple. Hamdi's father is filing the writ saying, hey, my son is a citizen, he's protected by the Constitution, you have him detained, you need to either show a lawful reason why he's being detained, aka charge him with something, or you need to let him go. And of course, the Court says, no, thanks, we don't agree. So the plurality opinion here, and we should talk about the votes a little bit, 'cause they're a little weird, the plurality opinion is written by O'Connor. It's joined By Rehnquist, Kennedy and Breyer.

0:16:16.6 Michael: Yes, pod favorite.

0:16:19.1 Peter: There's a concurrence/dissent written by Souter and joined by Ginsburg, there's a dissent written by Scalia and joined by Stevens, and there's another dissent written by Clarence Thomas, so a lot of disparate ideas floating around here from the Justices. And the main argument put forward by the majority here is very simple: Following the September 11th attacks, Congress passed the authorization for use of military force, which grants the President the power to use all necessary and appropriate force against nations, organizations or persons associated with the September 11th, 2001 terrorist attacks.

0:16:57.9 Peter: The Court says, well, we're in a war. Everyone knows that holding prisoners is part of war, so that's that, right? What they do say is, well, look, you gotta give them some process, so there should be like a tribunal essentially to determine whether he is in fact an enemy combatant, but that's it. Once it's determined that he's a combatant, he can be held indefinitely, even though he's a US citizen. So the strongest rebuttal comes in Antonin Scalia's dissent, which is joined again only by John Paul Stevens.

0:17:28.6 Michael: You never really have to hand it to Antonin Scalia, but I will say when people ask me if he ever wrote any good opinions, this is my go-to.

0:17:36.1 Peter: No, it's good, it's strong. Scalia says, like, hold up, this guy is an American citizen. This shit is very plainly spelled out in the Constitution.

0:17:45.2 Rhiannon: It's right there.

0:17:47.3 Peter: American citizens get due process of law, so you can either suspend habeas corpus, like Lincoln did during the Civil War, or you can try this guy for treason or something, but you can't just hold him indefinitely without charge, that's Constitution 101, buddy.

0:18:02.6 Rhiannon: That's kindergarten Constitution, bitch.

0:18:05.3 Peter: So instead of recognizing that fairly obvious truth, the Court sort of invented a middle ground where there's a tribunal to determine if he's an enemy combatant, and then once that's done, it's open season. Why did they make up such a weird middle ground? What Scalia hints at, and I think is probably correct, is they're nervous about interfering with military power during wartime, and that's what the Court's doing here, they're just being a little bit chicken shit because you have this massive military operation going on and you have these political and cultural forces pushing for it.

0:18:38.7 Michael: Right, right. That's right. Scalia, yeah, he says basically, we're all scared. But that's another way of saying that the majority is not only an explicitly political decision, but that it's an act of political cowardice. Everyone knows what the correct answer is here, it's precisely what Scalia and Stevens are saying.

0:18:57.8 Rhiannon: If you're wondering why someone as evil and awful as Scalia is actually taking the correct position in dissent here, I think there are probably a lot of explanations. One is that Scalia just didn't see the judiciary as being in a position to kind of create new judicial bodies from whole cloth. Historically the idea of the writ habeas corpus, it's in the Constitution, it's been used over hundreds of years. Scalia sees a sort of clear judicial role on these matters, and doesn't think the institution should be creating sort of different processes for habeas.

0:19:40.6 Rhiannon: I also think that it can be chalked up to Scalia's personality. He's willing, I think, to be a little bit idiosyncratic, be a little bit different and bold and kind of unique on his opinions, and so you get him being one of the lone dissenters here.

0:19:56.2 Peter: He taught me it's okay to be weird, yeah.

0:20:00.5 Rhiannon: He's an E-girl.

0:20:02.2 Peter: Scalia bath water for 50 bucks.

0:20:07.7 Michael: They just don't have the balls to actually tell the Bush administration, you have to treat this guy appropriately, right? But the thing is, that's the whole fucking point of life tenure, that's the whole point of the courts, right, this is precisely their role is in moments like this, to be insulated politically, this is precisely the sort of unpopular decision courts need to be making, is saying, I know everybody's scared, but that doesn't mean we turn off the Constitution. That's their job, and they fucking didn't do it, because they were cowards. That's it. The only two people with balls were Scalia and Stevens, who was the only one who has been in the armed services, which is... I don't know, it feels relevant to me for some reason.

0:20:54.4 Peter: It's interesting, because this is a good example of the difference between doing something unpopular and doing something that is like truly heterodox, right. Like conservatives are ready to overturn Roe right now and do all sorts of shit that's like politically unpopular, but they still have the support of the Republican Party, of private conservative institutions, there's no bravery required on their part, because they're siding with power in many ways. But to grant alleged terrorists concrete rights and put pressure on the executive branch and the military in a time of unprecedented bipartisan support for aggressive military action, that would have taken real courage, and for all of the grandstanding about the importance of the rule of law you see from conservatives, they didn't have the conviction in it to follow through here.

0:21:37.8 Rhiannon: Right, and also setting aside everything that you learn about checks and balances, the very point of the Supreme Court, like Michael was saying, and the point of lifetime tenure. So it's not just like a lack of courage, it's also sort of an abdication of this really central, clear role that this institution is supposed to have in relation to the other branches of government.

0:22:02.7 Rhiannon: That's right, it's an abdication of responsibility, that's a great way of putting it.

0:22:05.8 Peter: Yeah. So Souter concurs in part with the plurality, and then dissents in part, so I want to talk a little bit about his dissent, which I think is also correct. He points to a law, 18 USC 40-01A.

0:22:19.6 Michael: Rolls off the tongue.

0:22:23.6 Peter: Yeah. Now, the law says, quote, no citizen shall be imprisoned or otherwise detained by the United States, except pursuant to an act of Congress. That law was passed in response to the Japanese internment camps of World War II. So what the government argues is, well, the authorization of military force by Congress gives us the power to go to war, there are other statutes that give us the power to take prisoners, so if you read it all together, Congress has given us the authority to detain citizens. And what Souter says is, hey, Congress passed this statute saying, if you want to detain citizens, you need to get authorization from Congress, you can't just say, oh, if you read these laws broadly, they can be interpreted as granting authorization, it needs to be clearly authorized, and it's not.

0:23:07.1 Peter: Like the law is designed to prevent citizens from being detained during wartime, so if a generic authorization of war from Congress can override the law, that sort of defeats the entire point of the law.

0:23:18.5 Michael: The law has literally no function. Yeah, it's interesting, Souter... It's disappointing that Souter's dissent isn't just a pure dissent, because it actually works as a really nice pair with Scalia's, because they both sort of make the same point. Like Scalia's point is like, there's this thing in the Constitution called the suspension clause that says if you want to hold American citizens indefinitely without charge, you have to suspend the writ of habeas corpus. And Souter's saying there's this law that says if you want to imprison American citizens, you have to have an explicit Act of Congress, and what the majority's decision is doing here is writing both those things out, right, writing the suspension clause out of the Constitution.

0:24:01.9 Michael: Turns out you don't have to suspend habeas corpus to hold American citizens indefinitely, and writing this other law out of the US code, right. Like it turns out just a blanket authorization of war gets you all the way here, which is not the way it's supposed to be, and it's plainly obvious that's not the way it's supposed to be.

0:24:21.3 Peter: So I guess we are contractually obligated to talk about Clarence Thomas' dissent here. Clarence Thomas... Let me set this up. So Clarence Thomas files a dissent that is essentially a defense of the idea that the military needs unfettered discretion during wartime. He like cites Federalist Papers and shit like that, and he's basically like, this is a time of war, the executive branch and the military can do whatever they want.

0:24:52.7 Michael: Right, he says it's the most important goal of the US government, the point is protecting the homeland.

0:25:00.9 Peter: Yeah, it's not... We use the term fascist a little more freely than your average podcast might, I imagine, but this isn't just like fascist in practice, this is an endorsement of fascism as a concept.

0:25:13.3 Michael: It is. It is so authoritarian, it's hard to overstate. Like this thing, it's like, fuck, yeah, the President can do this, he doesn't even need the authorization to use military force, this is his constitutional prerogative to do this, to round up American citizens and detain them indefinitely. Under Thomas' telling, the only thing that's required during times of war for the executive branch to detain American citizens is a good faith determination by the executive branch. That's it. That's it.

0:25:49.2 Michael: And the other thing is worth noting is that Thomas doesn't even think Congress needs to weigh in on whether or not we're at war. According to him, not in this decision, but in another decision, Hamdan, he says Osama Bin Laden declared jihad against the United States in 1996, and so any point after that, the President's war powers are triggered.

0:26:11.2 Peter: That's why I believe that post January 6, Biden can round up Ginni, throw Ginni in a cell indefinitely.

0:26:19.6 Michael: Motherfucker. I literally was planning on making that joke.

0:26:26.5 Peter: Sorry, I'm always thinking about Ginni whenever we're talking about Clarence.

0:26:34.6 Michael: I wrote that joke last night and I was...

0:26:38.0 Peter: Sorry. Yeah, I re-read his dissent three times, because there is something about it that is just so fascinating to me. And I think it's important to understand a certain part of conservative psychology, to understand what he's doing here, 'cause if you're on the left and you look at his dissent, or you look at reactionary policy vis-a-vis Muslims generally, you might be struck by how intentionally brutal and cruel it is. Adam Serwer famously wrote that essay titled The Cruelty Is The Point in the Atlantic a few years back in an attempt to sort of shine a light on what we're seeing out of conservative politics.

0:27:14.4 Peter: And I think it was useful, but a big component of reactionary psychology that's missing from that equation is this idea that both the left and the right perceive the world as brutal and violent, but to someone on the left, the solution to a cruel world is to build a gentler one. And to reactionaries, the brutality of the world is a constant, it cannot be changed, and therefore it must be met with brutality in kind. So to them, like trying to fix a cruel world with kindness is naïve. That's... I made a crack about the whole Jack Nicholson and A Few Good Men speech, but that's what that speech is, right? You soft liberal morons need hardened men to do the dirty work and the dirty work absolutely must be done, because it protects us.

0:28:01.3 Peter: Clarence Thomas' entire framework for executive power stems from this idea that the military must be let completely loose against your enemies, not because the Constitution demands it per se, but because if you do not do it, you will lose. And I think that's what you need to keep in mind when you're reading Clarence Thomas here. My only other thought about this dissent is that he makes a point to highlight that the Court is not fit to address matters of military concern, because like such matters require a particular expertise, which is a sentiment you see pop up from time to time, and I really enjoy it because the Court weighs in on all types of social and political science and economics and whatever the fuck all the time, but military strategy is where Clarence Thomas draws the line.

0:28:44.6 Peter: Yeah, any 13-year-old who's put some hours into civilization can do the basic work of a general.

0:28:54.2 Michael: That's right. That's right. I read Sun Tzu when I was like 22.

0:29:00.5 Peter: Once war gets completely computerized, our generals are just going to be like a 15-year-old, that's my basic theory about where we're going.

0:29:05.0 Michael: Isn't that Ender's Game?

0:29:06.3 Peter: Oh, yeah, that is Ender's Game, huh.

0:29:10.3 Rhiannon: So we should talk about this middle ground that we mentioned before, that the Supreme Court created with this case, saying that the writ of habeas corpus doesn't have to be suspended and you don't have to fully inform somebody of what they're charged with, if they're a US citizen who is being held as an enemy combatant, but some process is due. So what results from this decision is that the Department of Defense in 2004 created what were called combatant status review tribunals. Basically, these were a set of tribunals for confirming whether these enemy combatant designees, these detainees, who were held by the United States at Guantanamo Bay, whether they had been correctly designated as enemy combatants.

0:29:58.7 Rhiannon: So US citizen detainees were basically given the right to challenge whether they had been correctly labeled enemy combatants, but that's really the only process that they're given at the beginning of the proceeding.

0:30:10.9 Michael: Basically a recognition that for two years they were just fucking rounding people up. Well, we should probably make sure you guys were all actually taking up arms against us now. We got a little carried away.

0:30:23.2 Rhiannon: Right, exactly, but let's talk about how these tribunals were actually set up. So first of all, none of the proceedings that happened at these tribunals were public, so they were not open to the public, they were not recorded and then made public. The rules of evidence at these determinations, the rules of evidence did not apply, and the government's evidence was presumed to be genuine and accurate. The location for where these CSRT proceedings happened were completely unknown; to this day, they don't know what room people were in at Guantanamo Bay or on a military base anywhere else, and the identity of the presiding officers, the people who were in this sort of judge role at these tribunals is classified to this day.

0:31:11.0 Rhiannon: So on the one hand, the Supreme Court is saying, okay, well, yeah, I mean, you do get a little bit of due process, right, you do have this special proceeding, at least to challenge whether or not you were correctly designated as an enemy combatant, but what actual good faith determination is happening in this institution that isn't public, the rules of evidence don't apply. You don't know where it's happening, and the government's evidence is presumed by the rule, by the legal rules in these tribunals to be correct. And the government is the one saying, these are enemy combatants. So it's a sort of M [0:31:47.0] ____ process, if any, right?

0:31:49.8 Michael: That's right. And the thing about decisions like this, relaxing standards during war, they always end up as like one-way ratchets. It's not the case that the conflict calms down and everything goes back to normal. For example, like this decision specifically contemplates the idea of an open-ended non-traditional war on terror and says, we don't have to address that. There is a traditional war in Afghanistan, this decision runs for the length of the war in Afghanistan. As long as there are active hostilities in Afghanistan, you can detain people like Hamdi, citizens or otherwise.

0:32:32.9 Michael: In 2012, the DC circuit just says, actually, you can be detained for the length of the war with Al-Qaida, which that's very different, and they cite to this decision, they're just like, actually, it's much more expansive than that. And now the government is arguing the same thing in front of the Supreme Court just this month. They're saying the same exact thing that, hey, active hostile activities are ongoing, so we still can detain people indefinitely. It's also not just about indefinite detention, this decision set the stage for the Obama administration assassinating an American citizen, like dropping a fucking bomb on Anwar Al-Awlaki and killing his kids.

0:33:17.8 Peter: In separate incidents.

0:33:18.9 Michael: That's right.

0:33:19.9 Peter: Killing his kids six years later in 2017.

0:33:23.8 Rhiannon: That's right, yeah.

0:33:23.9 Michael: You can read the Office of Legal Counsel memo that is absolute bullshit. It's not persuasive at all, justifying this use of deadly force against an American citizen without any judicial process. And it quotes extensively from Hamdi. Hamdi is the first cite in the document, and it's the most prominent cite in the document. They quote from it constantly, they're like, hey, if we can round up American citizens and throw them in jail, because that's like an incident of war, well, you know, killing people's an incident of war too, so we can certainly fucking bomb 'em, and that is that. And we're not talking about like across two trenches on the opposite side of a battlefield, right, like shooting each other, we're talking about a dude having a barbecue in Pakistan or wherever, having a fucking bomb dropped on his head, that's what we're talking about.

0:34:16.4 Peter: Yeah, when you hear the term like slippery slope, it's easy to write that off as like fear-mongering in a lot of situations, but when you're talking about the military industrial complex, no amount of caution is too much. This really did lead to seven years later, the assassination by drone of an American citizen by Barack Obama, right. And a huge amount of the overstepping that you saw under the Bush administration was carried forward to every subsequent administration, never rolled back, and from a pragmatic perspective, what was the point of stepping on that slippery slope, like what was the Court even accomplishing?

0:34:57.1 Rhiannon: Exactly.

0:34:57.2 Peter: The Constitution's pretty clear, right? The guy's a citizen, gets due process, simple as that, but even if you want to be less formalistic and more pragmatic and say, well, the Constitution needs flexibility, right. What's the point of being flexible here? There's only ever a handful of citizens who end up taking up arms against the country, so it's not like this massive problem that the Court needs to deal with, and if it does become a massive problem, the President can suspend habeas corpus, right? So what is the point of the Court creating this little loophole? It accomplishes almost nothing, and it places the law on a tremendously slippery slope, and if the government is allowed to designate citizens enemy combatants in a war that does not have any clearly defined enemies or borders or beginning or end, where is the line drawn?

0:35:44.7 Peter: And so in 2004, you could have said, well, look, the government isn't just going to start categorizing swaths of domestic citizens as enemy combatants, but then look at the rhetoric you're seeing out of the Republican Party now. Like just last year, Trump was deploying federal troops against Black Lives Matter protesters. If someone told him about fucking Hamdi, it would have been the end of the fucking country. If Republicans held Congress and the presidency, is it really outlandish to think that they would categorize like Antifa or whatever as enemy combatants? Is that really a crazy thought?

0:36:19.0 Michael: Yeah, at the height of the BLM protests in New York, people they were kettling and then bringing in were getting interviewed by FBI agents, being asked if they were Antifa, like that was happening. It's not nearly as far away as you think, and the legal groundwork is already there, thanks to our four brave souls, Sandra Day O'Connor, William Rehnquist, Anthony Kennedy and Stephen Breyer.

0:36:45.5 Rhiannon: Yeah, at the time, this decision was sort of identified or praised even by being a win for civil liberties, because the Court said that a US citizen detained as an enemy combatant has half of a due process, right.

0:37:02.1 Peter: Giant win for Oliver Twist as he got a single bowl of gruel.

0:37:06.5 Rhiannon: Right, exactly. But what the decision ends up being pretty quickly thereafter is just fodder for the military industrial complex to expand in ways that were definitely unforeseen, but now 20 years later are completely normalized, accepted. If you think about the massive surveillance operations on huge swaths of the country, not abroad, right, like here at home, massive surveillance and criminal prosecutions of Muslims in the United States, in New York City, but all over the country, this decision sort of comes at a really crucial time in the Bush administration's response to 9/11. And instead of taking that role and taking that timing seriously, what the Supreme Court did was green light a bunch of the normalization of the erosion of civil liberties in the Constitution.

0:38:04.6 Michael: As a society forever on war footing.

0:38:07.4 Rhiannon: That's right, yes.

0:38:09.4 Michael: And Peter was saying, like and what was this all for? I think to that point, for one thing, the Afghanistan war lasted 20 years, and so Hamdi could have been locked up for 20 years.

0:38:21.5 Peter: And the government's arguing that it's functionally still happening, right?

0:38:23.2 Michael: Right. So in their mind, they still could have him locked up if they want, but in point of fact, what actually happened was that shortly after this decision, they made a deal with him where if he renounced his citizenship, they would ship him off to Saudi Arabia. That's what happened, and that's the end of his story. So we have this real bullshit half-measure that really sent us down a bad path, and for what? For some guy that the government just released anyway. The functional outcome for Hamdi would have been the same if they had done the right thing that Scalia and Stevens were demanding. But the reason why so many people considered, and some still do consider this a victory for civil liberties, though, is because things were crazy back then. Like it's hard to overstate.

0:39:16.1 Michael: Remember, we were torturing people like extensively, right? The Bush administration position at oral argument, Rhiannon talked about what process is due, your due process, their position was the only process Hamdi was due, an American citizen, was the ability to tell his interrogators that he was not in fact Taliban or Al-Qaida. So their position was, literally, the due process clause protects you, but the only process you're due is the ability to say, look, I'm not Taliban, in between waterboardings. That's it. That's it.

0:39:56.5 Peter: Your Honor, we let him beg for his life. What else do you want?

0:40:00.5 Rhiannon: Right, not being told what you're charged with, if anything, not being given access to an attorney, not any time limitations on your detention, on the proceedings, nothing. Just you being able to say, if you want, I'm not a member of the group you're accusing me of.

0:40:17.1 Michael: Look, if we torture you for months and you insist the entire time, maybe we'll believe you. That's their position in the Supreme Court. So yeah, I get why people were like, this was a fucking major win, because you look at the moment and what the government was asking for, what the government was doing. I mean, it's fascist shit, it's like one of the ugliest moments in American history bar none, it's up there. Certainly post-Civil War.

0:40:45.5 Rhiannon: I think that's right. And I think without it, you don't have a lot of other opinions that kept on giving the green light, you don't have [0:40:52.0] ____, you don't have other opinions that do the same thing.

0:40:55.8 Peter: Yeah, there are these very obvious ways in which this has carried over to the modern day, the most obvious being that this fucking war lasted 20 years and the government is arguing that it's still happening. But materially speaking, the damage done by the Court and the sort of casualness with which the Court did that damage could not have been summed up better than it was at oral argument in US v. Zubaydah.

0:41:26.2 Rhiannon: A case where this guy, Zubaydah, is currently at Guantanamo Bay being held and asking for certain testimony from CIA operatives about a black site, basically a torture site, where he was present some time ago in Europe, and earlier this month, actually just a few weeks ago, our favorite courtroom idiot, Justice Stephen Breyer, showed up to oral argument in the Zubaydah case in a really absurd way, in a way that demonstrates just how out of touch the Supreme Court Justices are in understanding the ramifications of the Hamdi decision. He starts, for example, by asking Mr. Zubaydah's lawyer why Zubaydah himself cannot testify about his experience.

0:42:17.9 Michael: Why not? You know, he was tortured, why not just be like, yeah, I was there, I was tortured. Why can't he testify?

0:42:23.9 Peter: This is so good. Justice Breyer, like we're 20 years in. He signed on to the plurality in Hamdi. From what I can tell, he doesn't actually understand what Guantanamo Bay is. He like totally doesn't get it. The incredulousness of the lawyer talking back to a Justice of the Supreme Court is so fucking good, where Breyer's just like, why can't he testify? And the lawyer's like, he's at Guantanamo Bay.

0:42:52.9 David Klein: Abu Zubaydah cannot testify...

0:42:53.0 Stephen Breyer: Why not?

0:42:52.5 David Klein: Because he is being held incommunicado. He is being held in Guantanamo incommunicado.

0:43:00.9 Stephen Breyer: Why? Why? I mean, I'm not sure this is relevant, but...

0:43:02.5 Rhiannon: He is being held incommunicado. That's kind of why we're here, sir.

0:43:06.0 Michael: He has been held incommunicado since they tortured him. Because he was tortured, they don't want him to tell anybody that.

0:43:12.5 Rhiannon: Like he's not getting the process, you know what I mean? Like my client is not being given the process that is due to other people who are detained.

0:43:25.1 Peter: Like the key part of the exchange is when Breyer's like, well, we said in Hamdi, as long as active hostilities are ongoing.

0:43:31.7 Stephen Breyer: But they're not anymore, so what's the... Why is he there?

0:43:35.1 Peter: And the lawyer's like, why don't you ask the fucking government? They're holding him, they're holding him in prison.

0:43:41.2 Rhiannon: It's not me keeping him there.

0:43:42.8 Peter: But the government lawyer is sitting on the other podium like, hey, great question, Stephen.

0:43:50.5 Michael: Oh, shit, I didn't even think of that.

0:43:52.2 Rhiannon: And in maybe the most insane part of oral argument, Justice Stephen Breyer says...

0:43:57.4 Stephen Breyer: Have you filed a habeas or something to get him out?

0:44:03.0 Michael: The answer... The answer...

0:44:05.1 Rhiannon: The answer, David F. Klein, the lawyer representing Mr. Zubaydah, said:

0:44:08.9 David Klein: There's been a habeas proceeding pending in DC for the last 14 years.

0:44:14.7 Michael: Fourteen years.

0:44:16.1 Peter: Fourteen years. You dumb motherfuckers created an apparatus so riddled with logistical holes that the habeas petition has been pending for 14 years, and rather than hearing that and thinking, wow, I live in a fucking awful country, which is the only thing you can really infer from that, Breyer just starts to blame the lawyer, he's like...

0:44:39.1 Stephen Breyer: I mean, you just let it sit there? I guess this is not relevant, I'm just curious.

0:44:42.5 David Klein: Personally I'm not handling that proceeding, but no, my understanding is that we've done everything we could to move it forward, but it simply has not moved forward.

0:44:52.4 Rhiannon: Like how obtuse are you, dude, how could you not know what is going on at Guantanamo, how could you not know the ramifications of your ruling in Hamdi?

0:45:03.3 Peter: He'll know when we send him there. This exchange just made its way around Twitter and everything, because it's just emblematic of how distant from the facts on the ground the Court actually is on this stuff. They have no fucking idea what they've created in these War on Terror cases, they barely understand the legal apparatus, let alone the material implications.

0:45:28.6 Michael: Right. And I think it's a great illustration of the dangers of pulling things out of normal legal process. It's like, you thought you were doing something good here with Hamdi, you thought you were doing something that was unprecedented, and you were giving all these combatants the chance to challenge their status, which hasn't happened before, and blah, blah, blah. And in Boumediene, this other case, you said that habeas corpus applies at Guantanamo Bay, and you did these things thinking you are protecting the Constitution, but in in point of fact, you haven't done anything real to protect these people's rights, and the only people who've managed to do anything for them is their lawyers.

0:46:10.6 Rhiannon: Yeah, yeah, as someone who is in front of criminal court judges and often feels as a defender that I am teaching the judge the law at the same time that I'm asking them to do something, to answer a law question on behalf of my client, I have so much like empathy and sympathy for this attorney who is in front of the highest, most powerful court in the land. But you just don't expect that kind of ignorance, I think, from a freaking Supreme Court Justice, right. I can't imagine leaving that oral argument and what you're thinking as the legal team. Like, he doesn't even know why people are currently being held at Guantanamo Bay. You know what I mean? It's absurd, and a Kafkaesque peek behind the curtain, really.

0:47:04.6 Michael: Yeah. And talking about the disconnect, something that you will never, ever see acknowledged, I would be shocked to see it acknowledged in the print of the Supreme Court reporter or whatever, is like the real answer to his question is that we tortured a lot of people. We tortured a lot of people, some of whom we have good reason to believe actually were terrorists or whatever, or Taliban, but simply don't have the evidence necessary to actually put them through process, and even if we did, we can never actually put them through process, because the first thing they would say is, we were tortured. So we just have to hold them forever, we have to hold them in Guantanamo forever.

0:47:48.9 Michael: That's what the political apparatus has sort of collectively decided, like a mess you don't want to deal with, so you just shove it in your closet and the fucking milk at the bottom of it is just spoiled rotten, and it's disgusting and it stinks, and you're like, well... As long as I don't don't look at it, eventually it'll go away, right? That's what we've collectively done with Guantanamo Bay.

0:48:15.9 Peter: To wrap this up, I think like the fact that the Court enjoys some independence from political processes is obviously dangerous, and you can see that danger manifesting in the modern Court, but that independence does have some theoretical advantages, right? In a world where both political parties are largely captured by the military industrial complex, the Court is one of the few institutions in a position to meaningfully restrain the security state.

0:48:43.5 Peter: But the Court is instead mostly operated to provide the security state with vindication. It doesn't leverage its political independence when doing so would be crucial and meaningful, and that's why we've often indicated that we want to see more democratic responsiveness from the Court, because for all the talk of the importance of the Court's independence from the political branches, the way their independence functions in reality is that it provides them license not to defy politics, but to engage in it. And I think a case like Hamdi is just proof that this concept doesn't get you that far.

0:49:17.8 Peter: The Court's independence from the political branches, it doesn't serve the purpose that people think that it serves. You have a situation here where the law is incredibly clear and the politics and the culture are pushing in the other direction, and the Court for the most part went with the politics and the culture. And to me, that's a great sign that the Court's independence, for all that's made of it, is just not that valuable.

0:49:43.1 Michael: That's right.

0:49:47.8 Peter: Next week, an exclusive ground-breaking interview with Senator Sheldon Whitehouse.

0:49:52.6 Rhiannon: Not a joke. Not a joke. Senator Sheldon Whitehouse.

0:49:56.7 Peter: No, this is really happening.

0:49:58.5 Rhiannon: On 5-4.

0:50:00.3 Peter: Coming on to talk about Court reform, and we've had a couple of representatives on...

0:50:04.1 Rhiannon: Mere congressmen.

0:50:05.5 Peter: Mere congressmen, and I think our takeaway from that was we need to be more mean. So my promise to you is that Senator Whitehouse is going to leave this interview in tears.

0:50:19.7 Peter: Follow us on Twitter @fivefourpod, subscribe to our Patreon for bonus episodes, events, access to a Slack, all sorts of shit. You wouldn't even believe it. Patreon.com/fivefourpod, all spelled out. We'll see you next week.

0:50:35.7 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percia Verlin. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

0:50:57.5 Michael: I can't believe Peter had the same exact joke. January 6, Ginni Thomas, I was about to go into it.

0:51:06.2 Peter: You paused too long.

0:51:06.3 Michael: And you were like, boom!

0:51:06.7 Peter: You went for the comedic effect, but I pounced. I got Ginni on my mind.

0:51:11.6 Rhiannon: Thinking about our girl Ginni.