Ruth Bader Ginsburg on Homeland Security

Supreme Court Justice (nominated by Pres. Clinton 1993)


Torture, even under extreme need, makes us like our enemy

Justice Ginsburg discussed a decision by the Israeli Supreme Court concerning the use of torture to obtain information from people suspected of terrorism. "The police think that a suspect they have apprehended knows where and when a bomb is going to go off," she said, describing the question presented in the case. "Can the police use torture to extract that information? And in an eloquent decision by the chief justice of Israel, the court said: 'Torture? Never.' "

The message of the decision, Justice Ginsburg said, was "that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity." Then she asked, "Now why should I not read that opinion and be affected by its tremendous persuasive value?"

Source: Adam Liptak, New York Times, "Ginsburg Shares" , Apr 11, 2009

Military spousal support should be equal by gender

Frontiero v. Richardson (1973): This decision was one of the first to uphold a claim of gender discrimination. The Court struck down a federal law awarding spousal support benefits to married men in the military but not to married military women and indicated that it would scrutinize such claims as carefully as those based on race. The case on behalf of Sharron Frontiero, an Air Force lieutenant, was argued by the ACLU's pioneering women's rights attorney Ruth Bader Ginsburg, who became the second female Supreme Court justice in 1993:

"The question for decision is whether a difference in treatment constitutes an unconstitutional discrimination against servicewomen. We conclude that, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statutes violate the Due Process Clause of the 5th Amendment insofar as they require a female member to prove the dependency of her husband."

Source: A Patriot's Handbook, by Caroline Kennedy, p.330-331 , Apr 13, 2005

All-male military schools like VMI must admit women

The decision in "US v. Virginia" that the Virginia Military Institute, the state's only single-sex school, must now admit women. VMI was, for 157 years, an all-male military college whose mission was to produce "citizen soldiers." The majority held that it was the denial of equal protection for Virginia to offer this education only to men.

Justice Scalia was the sole dissenter (Justice Thomas took himself out of the case because his son attended another all-male military college, The Citadel). Scalia observed: "The First Amendment readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, this Court has embarked on a course of inscribing one after another of the current preferences on the society into our basic law."

Source: Slouching Towards Gomorrah, by Robert Bork, p.108 , Dec 16, 2003

Congress authorized detaining US citizens as enemy soldiers.

Justice Ginsburg joined the concurrence on HAMDI v. RUMSFELD on Jun 28, 2004:

Yaser Hamdi, a US citizen, was captured in Afghanistan and detained as an enemy combatant in the US where he was permitted no contact with family or an attorney. His father sought the writ of habeas corpus. Hamdi had been in Afghanistan from Aug. 2001 and was with Taliban forces and armed when, after the US invasion of that country, he surrendered to Afghan forces allied with the US.

HELD: Delivered by O`Connor; joined by Rehnquist, Kennedy & Breyer

Enemy combatants may lawfully be held as a use of "necessary and appropriate force" by the President under the Authorization to Use Military Force (AUMF) provided by act of Congress after the 9/11 attacks. The laws of war allow detention of combatants during hostilities so they do not rejoin the enemy effort. Precedents allow US citizens to be held as combatants. Habeas corpus is available to challenge such a detention. Wartime concerns will restrict due process to presumptively correct facts; if a court finds that Hamdi took up arms against the US, the AUMF authorizes his detention for the duration of hostilities.

CONCURRENCE:Souter concurs in judgment; joined by Ginsburg

There is criminal law to deal with citizens who use force against the government. The AUMF does not speak to detaining citizens. The claim to be holding Hamdi according to the law of war is undercut by holding him incommunicado, which is not the custom with a prisoner of war.

DISSENT #1: Scalia dissents; joined by Stevens

The executive's detention of citizens runs against core notions of liberty. To detain a citizen, the US must either criminally charge him or Congress must suspend the writ of habeas corpus. There is no middle ground. The Court should not fix problems within the authority of other branches to deal with.

DISSENT #2: Thomas dissents

The determination that Hamdi is a combatant who must be detained is within the war powers of the executive. The judiciary is not free to examine it.
Source: Supreme Court case 04-HAMDI argued on Apr 28, 2004

Guantanamo detainees allowed habeas writ in US courts.

Justice Ginsburg joined the Court's decision on RASUL v. BUSH on Jun 28, 2004:

The petitioners, foreign citizens captured by the US military during the hostilities in Afghanistan and currently detained at the US naval base at Guantanamo Bay, Cuba, seek the writ of habeas corpus (right to a hearing) to challenge their indefinite detention without charges or hearing.

HELD: Delivered by Stevens; joined by O`Connor, Souter, Ginsburg, & Breyer

Persons held in custody can file a claim that the custody is illegal. By treaty, the Guantanamo naval base is under the complete jurisdiction and control of the US, even though Cuba retains "sovereignty" if the US abandons the base. That is sufficient for the habeas corpus statute. The petitioners have had no hearings, unlike the German nationals captured in China after WW II and imprisoned in Germany who were denied habeas corpus by the Supreme Court. Authority to hear these claims should be interpreted broadly because in the common law history of habeas corpus, this law extended to places under the king's "dominion", even if not part of the "realm."

CONCURRED: Kennedy concurs

The Court's conclusions about certain statutory interpretation are incorrect, but the outcome is correct. The petitioners are far away from the military's combat operations, in a place entirely controlled by the US, and being held indefinitely, so should have the writ of habeas corpus.

DISSENT: Filed by Scalia; joined by Rehnquist & Thomas

The petitioners are not within the territory of a district court, nor even in the US; Parts of Afghanistan have been brought by lawful force and arms within US control as much as Guantanamo has. No English common law case allowed habeas writ to persons off British soil unless they also were citizens. The detention of combatants during war is a Constitutional power of the President. In the absence of a statute passed by the Congress, US courts have no authority in the matter, can only confuse military efforts, and will give comfort to the enemy.
Source: Supreme Court case 04-RASUL argued on Apr 20, 2004

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Other Justices on Homeland Security: Ruth Bader Ginsburg on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John Roberts
Sonia Sotomayor
Clarence Thomas

Former Justices:
Antonin Scalia
David Souter
Sandra Day O'Connor
William Rehnquist
John Paul Stevens

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Page last updated: Mar 23, 2016