The Supreme Court ruled today that prisoners in the war on terror held at Guantanamo Bay are entitled to their day in court. The decision, styled Boumediene v. Bush, was 5-4, with Justice Anthony Kennedy in his familiar role as the swing vote and Justices Roberts, Alito, Scalia, and Thomas dissenting. This is the crucial language in Kennedy’s opinion: Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protection because they have been designated as enemy combatants or because of their presence at Guantanamo. The case arose after Congress, in passing the Military Commissions Act in 2006, explicity denied enemy combatants the right to use the writ of habeas corpus. Early news reports raised the issue of whether the decision could force the Bush Administration to delay or cancel the trials before military tribunals. They had previously been delayed until July 21. Chief Justice Roberts dissented. His opening salvo reads: Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict after much careful investigation and thorough debate. The Court rejects these today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has ever attempted to avail himself of the law’s operations. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by the federal courts at some future date. One cannot help but think…that this decision is not about the detainees at all, but about control of federal policy regarding enemy combatants. Well, sure it is about control of federal policy. All Supreme Court cases ultimately are about who gets the last word. That’s the essence of judicial review. As mid-century Justice Robert Jackson famously said of the Court, “We are not final because we are infallible. We are infallible because we are final.” The Court asks the question, “Who has the power?” and more often than not answers with, “Why, we do, of course.” The Chief Justice would require the detainees to attack the procedures established by the Military Commissions Act. But the detainees chose to go a different route. They challenged the legality of their detention by invoking the writ of habeas corpus. The writ allows a person who is detained by the executive to demand that the government justify the reason for his detention. The privilege of the writ is established in the Constitution (Article I, Section 9) and cannot be suspended “unless, when in cases of rebellion or invasion, the public safety may require it.” The conditions are inapplicable. My concern about Roberts and Alito as justices is that they bring to the bench their attitudes as former lawyers with the Justice Department. They owe their appointments not to their judicial philosophies, but to their professional viewpoint as Justice Department lawyers whose jobs were to justify and defend the conduct of the executive branch and support the exercise and expansion of executive power. Here they would deny habeas corpus review and force the detainees to contest the constitutionality of procedures crafted by the executive branch–achieving, in effect, a judicial suspension of habeas corpus. I believe that the kind of judges the White House wants is not the kind who overturn liberal decisions like Roe v. Wade, but rather the kind who will accede to the expansion of executive power that the Bush Administration has consistently sought. The aforementioned Justice Jackson is also the source of another famous comment about the Court: “The Constitution is not a suicide pact.” This is the argument made by the Administration and its defenders: that the law must not be a straightjacket that prevents the government from defending the public safety. That is not the case here. The detainees are in custody; they have no ability to do harm; they are subject to criminal prosecution and incarceration. If the government has proof that a detainee has associated with terrorists, then the detention is justified and habeas corpus will not be granted. If the government is detaining someone indefinitely, they ought to have to justify the detention. A few minutes ago I was listening to the taped conclusion of oral arguments in this case. A lawyer for one of the detainees said that the government had determined that his client, a German national, had had associations with a terrorist who had blown himself up as a suicide bomber. The lawyer added that the detainee said that he had no inkling that the man was a terrorist. The lawyer concluded by saying that the suspected terrorist in fact was not deceased but was alive and living in Dresden. The lawyer had affidavits from German prosecutors that the man was not a terrorist. And then, the clinching argument: Under the Military Commissions procedural protections, his client would not have been able to get any of that information. This is the United States of America, and we ought to play by the rules that have existed for 219 years.
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