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The Great Writ Survives As Liberty & Security Are Reconciled In The Imperial Age of Bush

June 13th, 2008
By SHAUN MULLEN, TMV Columnist

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The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law. – JUSTICE KENNEDY

The mere notion that The Great Writ should not apply to the people that a presidential administration views to be enemies is so un-American that it still boggles the mind that George Bush, Dick Cheney and their minions have done that very thing by using the 9/11 attacks as a pretext and part of a larger imperial power grab unprecedented in presidential history. And have pretty much gotten away with it.

A conspicuous exception is an odoriferous law passed at the White House’s insistence by a cowed and compliant Congress known as the Military Commissions Act, which the Supreme Court ruled for the third time yesterday is out of legal bounds because of its suspension of habeas corpus and other kangaroo court trappings.

Justice Anthony Kennedy, writing for the majority in a 5-4 ruling that broke down along partisan lines, declared that terrorism suspects at Guantánamo Bay have constitutional rights and can appeal their cases to civilian courts.

Kennedy’s opinion — which was a reflection of the fears of the majority that innocent people could be confined indefinitely without due process, even for the rest of their lives — was a deft balance between civil liberties and national security concerns. The dissenters seemed genuinely horrified that if detainees were allowed their day in court information could come out that would help their brother terrorists and worst yet, information could come out that would lead to their release, a concern that is mitigated by the reality that no one can predict how those civilian courts will respond to the appeals.

For what it’s worth, the ruling would have been 6-3 if Sandra Day O’Connor, who in 2004 declared that “A state of war is not a blank check for the president,” was still on the court.

In any event, it was a timely reminder of the great mischief that a President McCain, who was one of the prime movers behind the detainee act, would work in filling future high court vacancies given that the two current justices he says he most idealizes are right-wing extremists Antonin Scalia and Samuel Alito.

For his part, Scalia wrote in his dissent to the ruling that it is a “game of bait-and-switch . . . [that] plays upon the Nation’s Commander in Chief and will make the war harder on us. It will almost certainly cause more Americans to be killed.” He also claimed that 30 detainees who had been voluntarily released from Guantánamo by order of the Bush administration had returned to “the battlefield,” which means that in his draconian mind even people deemed innocent in the administration’s view are actually guilty.

Yes, you read that right.

The consequences of the ruling are indeed huge, if limited to what the president and Congress can do, something that Scalia willfully ignores in his rebuke, while there are three aspects of the ruling in particular that are being little commented on:

Please click here to read more at Kiko’s House.



This entry was posted on Friday, June 13th, 2008 at 4:40 am and is filed under Torture, Democracy, Justice Department, Bush Administration, GWOT, Tyranny, Guantanamo Bay, Congress, George W. Bush, John McCain, 9/11, Law & Legal Matters. You can leave a response, or trackback from your own site.

Viewing 10 Comments

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    Shaun should do his research before leaping for Scalia's throat:

    "He also claimed that 30 detainees who had been voluntarily released from Guantánamo by order of the Bush administration had returned to “the battlefield,” which means that in his mind even people deemed innocent in the administration’s mind are actually guilty. Yes, you read that right."

    To date, I can recall that two of those released from Gitmo have become suicide bombers; one, a Kuwaiti, who protested his innocence and was returned to Kuwait, and who blew himself up in a suicide bombing in Iraq a month or so back...another who blew himself up in Pakistan last year. Both were released upon political pressure being applied...not being deemed "innocent".

    Re: The "innocent" ex-Gitmo suicide bomber...From The Guardian: "The US military opposed his release, saying there was a risk that he presented a continuing danger, but he was freed after being transferred to Kuwait."

    http://www.guardian.co.uk/world/2008/may/08/gua...

    When were these men ever deemed "innocent" by the Bush administration in any proceeding of any sort? They were not, and have not been.

    They were, however, deemed innocent ... as are all the "prisoners of conscience" of Guantanamo... in the minds of liberals the world over.

    Hopefully they will all be released soon. Perhaps they will be given tickets to Obama's inaugural, as a sign of good faith from the new administration. They are, of course, innocents all.
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    Marlowecan:

    How refreshing that you take me to task for only roughly 5 percent of my post. I am flattered.

    My wording regarding the detainees who were released was imprecise. Being deemed "innocent" is not the same as being deemed unable to try or being transferred to a defendant's rights Eden like Kuwait. (Cough, cough.)

    But the larger point stands.

    Yes, it is most regrettable that at least two of those 30 detainees have gone on to do bad things, and there probably are more. But it is beyond outrageous that Scalia cops an attitude that is even more Owellian than the White House in advocating unlimited detention without due process. The man is a thug in a black robe and that you seem to honor him undercuts your credibility.
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    Hopefully they will all be released soon. Perhaps they will be given tickets to Obama's inaugural, as a sign of good faith from the new administration. They are, of course, innocents all.

    Nothing like a little homicidal rage to start the day, eh Marlow?

    Is it really too much to ask that our government prove the guilt of someone they intend to execute or hold in prison indefinitely?

    Funny how "conservatives" are so willing to vest enormous power in the government.
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    OK, will all those who worshiped at the alter of stare decisis during the Robert's confirmation all rise together to condemn this ruling please?

    Beside saying that the courts have the right to overrule a combined set of rules of the Executive and Legislative branches (remember, they just invalidated laws passed by Congress in specific response to their earlier rulings), they absolutely threw out Johnson v. Eisentrager (1950), which held that Germans in American prisons established in Germany had no habeas rights.

    From SCOTUSBlog: "Eisentrager’s holding (stated explicitly on several occasions by Justice Jackson) that the Constitution does not empower courts to issue writs of habeas corpus to aliens abroad under any circumstances".

    The majority also freely admitted in their decision that there is absolutely no case law supporting their position in the history of English or American law.

    So, those that feared an Imperial Presidency now have a new concern - the Judicial Lords.
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    Times change, AustinRoth remains the same. Ahem.
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    Yep, I still think neither the Constitution nor English law extends to non-Sovereign prisoners in war-time conditions held outside the US (or Sovereign country).

    Until yesterday, neither did any other U.S. Supreme or English court of law, for literally hundreds of years of precedence, with absolutely no rulings ever to the contrary, so I am in good company.
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    AustinRoth:

    You are definitely right that King John of England, perfect company for people with your mindset, would not approve.
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    AR-
    If not the SC, then what other mechanism do you propose for determining the legality of laws and presidential edicts?

    Your citing from the past contradicts the administration's argument that new conditions require new rules.
    I agree with the administration that rules designed for state-sponsored. uniformed armies can't answer the needs of fighting the likes of Al Qaeda. We have to adjust.
    What people like I are contending is that we adjusted to the point of wrecking core principles, Overadjustment. The SC ruling compels us to find a more reasonable adustment, one that doesn't alter who we basically are when it comes to law and humanitarian concerns.

    There are risks, no doubt about it. There are always risks in a just society.
    There are far greater risks in ceasing to be a just society.
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    Let's be clear here. I have zero issue appling the ruling to citizens and US nationals. Depsite what it may appear, I am a HUGE believer in habeas corpus. I actually supported the other two Gitmo rulings.

    The big problem here is the extension of Constitutional rights to non-citizens, outside the US (although in controlled territory), against the all prior case law, and the mutual will of both Congress and the executive (to whom the Constitution provides those powers to).

    Even the majority, in their ruling, flat out state that no case law exists to support their position, and the attempt to show how this case is different than Eisentrager is very weak and not very persuasive. Even though they try to claim that this ruling is not in conflict, or an overturn, it is by any real definition, and that is very troublesome.

    Think about it for a second. Even if you buy their reasoning, SCOTUS has just said that those who attack or otherwise wage war against the US and it's representatives, here and abroad, if done NOT under cover of an uniformed Army, in the guise of a civilian (otherwise known as spies and terrorists), have more rights than soldiers. That indeed is topsy-turvy of history, and the point of the Geneva Convention's protections for soldiers under arms.
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