On Detainees, Sotomayor Stood To The Right Of Souter

gitmoA 2003 guest lecture Judge Sonia Sotomayor delivered to Indiana University law students suggests that she takes a narrower view of the rights of U.S. citizens designated as “enemy combatants” than Justice David Souter, who she has been nominated to replace.  The speech, delivered more than a year before the Supreme Court’s first Bush-era detainee decision in Hamdi v. Rumsfeld, describes the lower court proceedings in Hamdi and a similar case, Rumsfeld v. Padilla, both of which involved U.S. citizens declared enemy combatants by the Bush Administration.  According to Sotomayor’s speech, such detention of so-called enemy combatants did not necessarily violate the law:

So we have suspected enemy combatants detained in secret and given different process than criminals. One can certainly justify that type of detention under precedents and current law.

Nothing in Sotomayor’s speech suggests that she accepted the Bush Administration’s position on detainee treatment–that persons designated enemy-combatants could be detained forever on the President’s word.  Indeed, if anything, Sotomayor’s views appear to closely track those of Justice Sandra Day O’Connor’s controlling opinion in Hamdi, which held that “although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.”  O’Connor believed that, while a suspected enemy combatant may be entitled to less procedural protections than a criminal defendant, their detention could not be immune from any meaningful process whatsoever.

Justice Souter, however, took a significantly more protective view of detainee rights than Justice O’Connor.  In response to the mass-detentions of Japanese-Americans during World War II, Congress enacted the Non-Detention Act, which prohibits the detention of U.S. citizens “except pursuant to an Act of Congress.”  O’Connor felt that the post-9/11 Authorization for Use of Military Force was such an “Act of Congress,” but Souter believed that the AUMF was too “vague” to permit detention of a citizen.  Had Souter’s view prevailed, it is likely that Hamdi would have simply been released.

To be fair, the unprecedented nature of President Bush’s detention policies make it difficult to predict how Sotomayor would have voted if she had sat on the Supreme Court as it was considering Hamdi.  The Non-Detention Act is, to say the least, not the kind of commonly-invoked statute that a judge or justice would normally be familar with.  It is entirely possible that, had Sotomayor read the same briefs that Souter did while considering Hamdi, she would have applied the Non-Detention Act in the same way.  Moreover, the Court in Hamdi didn’t exactly break down on traditional ideological lines.  In a somewhat surprising opinion, ultra-conservative Justice Antonin Scalia argued that U.S. citizens cannot be simply classified as enemy combatants and detained; they must either be prosecuted for treason or set free.  Only Justice Clarence Thomas took the Bush Administration’s view of the case, and there is no evidence linking Sotomayor to Thomas’ extreme views.

It is also worth note that Sotomayor has a number of decisions recognizing the basic humanity of people detained in run-of-the-mill criminal prisons, including a decision holding that a prison could not deny Muslim inmates their First Amendment right to participate in the traditional meal celebrating the conclusion of Ramadan merely because prison officials believe that this celebration was not sufficiently important to Muslims.  Nevertheless, one of the few datapoints informing how Sotomayor views detainee cases, her 2003 speech, suggests her views are to the right of the justice she will replace.