Saturday, July 17, 2004

Scalia's "Perverse Incentive"

I believe that the Christian faith involves weeping with the Lord over the brokenness of humanity. Some of this brokenness is rightly addressed by items of the agenda of the "family values" crowd, and many items on that of the "peace and justice" crowd. My study of the Church and my political sensibilities however make me more irked by those who espouse family values at the expense of human dignity.

I've never really been a fan of justice Antonin Scalia. When I heard that there was an 8-1 vote in Hamadi v. Rumsfeld, which was about our right to hold suspects at Guantamo Bay without trial, I naturally started seething at my ideological and theological nemesis, Scalia. I went to read the transcript and searched for what I assumed would be Scalia's dissent.

Interestingly, it turned out that the lone dissenter was Clarence Thomas, not Scalia.

I did find some interesting comments from Sandra Day O'Connor in response to Scalia's opinion:

JUSTICE SCALIA'’s treatment of that case in a footnote suffers from the same defect as does his treatment of Quirin: Because JUSTICE SCALIA finds the fact of battlefield capture irrelevant, his distinction based on the fact that the petitioner conceded enemy combatant status is beside the point. See supra, at 15–16. JUSTICE SCALIA can point to no case or other authority for the proposition that those captured on a foreign battlefield (whether detained there or in U. S. territory) cannot be detained outside the criminal process. Moreover, JUSTICE SCALIA presumably would come to a different result if Hamdi had been kept in Afghanistan or even Guantanamo Bay. See post, at 25 (SCALIA, J., dissenting). This creates a perverse incentive. Military authorities faced with the stark choice of submitting to the full-blown criminal process or releasing a suspected enemy combatant captured on
the battlefield will simply keep citizen-detainees abroad. Indeed, the Government transferred Hamdi from Guantanamo Bay to the United States naval brig only after it learned that he might be an American citizen. It is not at all clear why that should make a determinative constitutional difference.

O'Connor uses the word "perverse incentive" to refer to the legal framework Scalia would impose regarding the detention of prisoners. I just have to agree that this is perversion. I am saddened that too many conservatives aren't worried about this other form of perversity.

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