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:
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