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by Joel Aufrecht
12:22 PM, 28 Jun 2004
Justice Scalia filed a dissenting opinion which, to the extent that I understand it, I agree with. It's kind of confusing since you have to know exactly what Hamdi was asking, and I think the plurality opinion is right, as far as it goes—I think they are saying that the decision to make someone an enemy combatant must be subject to review—so I would have thought Scalia could concur with that while dissenting on the bigger point that THE PRESIDENT OF THE UNITED STATES CAN'T DETAIN PEOPLE INDEFINITELY WITHOUT A CRIMINAL SENTENCE OR CONGRESSIONAL SUSPENSION OF THE WRIT OF HABEAS CORPUS. But I guess Scalia has to dissent with the one step in the right direction that could be part of many more steps back.
... It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus.
Categories:
War
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