Thursday, June 12, 2008

A Victory for Liberty

The Supreme Court ruled today that Guantanamo Bay detainees may challenge the validity of their detention in U.S. Courts. This is a good thing for those who love liberty.

Basing most of what I am about to write on my memory from National Security Law and ConLaw, I will try to explain what I understand as President Bush's (and Congress) intent was in the law that was overruled. In essence, the law that was challenged denied habeas corpus to the detainees at Guantanamo Bay.

The President was probably relying (as he had in Hamdan v. Rumsfeld) on the premise that because the detainees were being held outside the United States - that is, they were in Cuba - that they would not be subject to habeas corpus - that the Constitution and the laws of the United States would not protect them. Since this failed in Hamdan (executive order), he created tribunals that would review the detention process. This review does not meet muster for what is required in a Habeas petition. Justice Kennedy commented on this in the Opinion (quoted from - Lyle Denniston at SCOTUS Blog): "[The Suspension Clause] protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periouds of formal suspension, the Judiciary will have a time-tested devise, the writ, to maintain the 'delicate balance of governance' that is itself the surest safeguard of liberty. [Those who wrote the Constitution] deemed the writ to be an essential mechanism in the separation-of-powers scheme." Justice Kennedy also noted that the political branches of government do not have "the power to switch the Constitution on or off at will."

President Bush stated that he "strongly agree[s] with those who dissented. And their dissent was based upon their serious concerns about US national security."

There are a couple things wrong with this. First off - it betrays the argument that we hear most often in favor of conservative-appointed justices - that they follow the Rule of Law. President Bush seems to argue that the justices he appointed, as well as Thomas and Scalia rule according to how they feel. This is exactly what Conservative refer to as Judicial Activism, and it strikes me as odd that the President would argue in favor of supporting the decision of Justices who let their opinions determine how they rule as opposed to the law and, particularly, the Constitution. Second, this decision should be one that President Bush applauds, because it holds one of his basic tenets on the war on terror undisturbed - that "we will not allow this enemy to win the war by changing our way of life or restricting our freedoms (emphasis mine).

Preserving habeas corpus review for those detained by our Government can be viewed as nothing less than ensuring that our freedoms are not restricted. This is a good ruling.

Nelson at the Liberal Journal has also posted on this topic.
Thanks to Just Wondering at Vim and Vinegar for linking to this post.

For more information on this matter, look at Melissa's post at WriteChic.

1 comment:

photog said...

I agree emphatically with you characterization of the neo-conservatives as "activist judges." The uncomfortable reality is that we - well, most of us - have an opinion about how we think a court, any court, should rule. And when the court breaches our faith in the judiciary by deciding contrary to our own internal judicial compass, we assume it must be the fault of the judges. It couldn't possibly be law itself.

Some who have had a modicum of legal training - but certainly not all - can eventually reach a point (which I shall call legal self actualization - penned mercilessly from Maslow) where they can admit the court reach the wrong decision for the right reasons, or vice versa.

This dichotomy between reason and result is the beauty and the bane of our legal system. Sometimes justice does not prevail. And sometimes justice does prevail, even though the jurisprudence is flawed.

Here, in the vortex of American civil liberties, both reason and result triumph and faith in our judiciary is renewed, even if only for a moment.