“Justice John Paul Stevens played a pivotal role in determining the scope of executive-branch power in a post-9/11 world,” observed the Congressional Research Service in one of a series of new reports reviewing the legacy and impact of Justice Stevens, who is set to retire from the Supreme Court next month.
“Justice Stevens authored majority opinions in two leading cases, Rasul v. Bush and Hamdan v. Rumsfeld, in which the Court allowed detainees’ habeas petitions to proceed and invalidated the early incarnation of military commissions, thereby rejecting the broader views of executive power articulated shortly after the 9/11 attacks. In the cases, his view prevailed over strongly articulated dissenting opinions authored by Justice Scalia and other justices,” the CRS noted.
“Justice Stevens has been instrumental in developing post-9/11 jurisprudence regarding the limits of executive power during — and following — armed conflicts. Prior to 9/11, the Supreme Court had rarely considered questions regarding potential limits on the President’s Commander in Chief power. The wartime detention cases provide key insights into the Court’s views on the reach of executive authority, as well as on other separation-of-power concerns, including Congress’s role.”
However, a portion of this legacy on detainees’ rights may already be subject to limitation or erosion. Last week, a federal appeals court ruled that detainees held abroad by the U.S. military in Afghanistan — unlike those in Guantanamo — could not invoke habeas corpus to appear before a judge.
See “The Jurisprudence of Justice John Paul Stevens: Leading Opinions on Wartime Detentions” (pdf), May 13, 2010.
The companion reports from CRS are these (all pdf):
Congress has forbidden CRS to make these and other publications directly available to the public online. Copies were obtained by Secrecy News.
Update: One more:
Update: And another: