Justice—Habeas Corpus—Vindicated By a Thread

Guantanamo Bay - "Honor Bound to Defend Freedom"?

The good news is that today the United States Supreme Court restored the constitutional right of habeas corpus to the detainees at Guantanamo Bay. I heard this news this afternoon in an email from Senator Patrick Leahy of Vermont, with whom I had some earlier correspondence on this issue:

Today the U.S. Supreme Court delivered a stinging rebuke to the Bush-Cheney Administration's handling of military detainees at Guantanamo Bay -- while vindicating you, me, and thousands of others who have spoken out against the Administration's unwise and unconstitutional policies from the very beginning.

In today's 5-4 Boumediene v. Bush decision, the Court ruled that stripping habeas corpus rights from detainees at Guantanamo Bay was unconstitutional. In so doing, the Court reaffirmed the fundamental right of habeas corpus -- the right that all Americans, and those prisoners under American control, have to challenge the government's reasons for imprisoning them -- a fundamental American right that underpins our individual freedoms and liberty.

Habeas corpus is the freedom from being thrown in prison illegally, with no help, no end in sight and no due process. As the ACLU said in its release later in the afternoon

“…no president should ever be given the sole power to call someone an enemy, wave his or her hand, and lock that person away indefinitely.”

That is not, of course, the way the Bush administration has viewed it. A few days ago I received a two page letter from the White House, written by a Nancy Theis, Special Assistant to the President and Director of Presidential Correspondence. This was in response to several letters I had written to the president on this matter. Speaking for President Bush, she said

“Under the Constitution, Presidents have the wartime power to authorize the trial by military commission of enemy combatants accused of war crimes and related offenses. Military commissions provide a full and fair trial while protecting valuable and sensitive intelligence sources and methods. This practice ensures the safety of the accused and all those participating in the process and aids the effective conduct of military operations.”

What the Supreme Court did today was to rebuke the president of the United States for usurping authority that was never his. As Justice Anthony M. Kennedy wrote in today’s landmark decision,

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.

Today’s decision is also a reminder to Congress that it doesn’t have the right to compromise the constitutional right of habeas corpus either. Yesterday, before the Supreme Court decision I received a letter from Senator Ron Wyden of Oregon with whom you have rightly guessed that I have also had correspondence about this matter. This is what he said about Congress’ role in this matter before today’s decision:

As you may know, the 109th Congress passed the Military Commissions Act, which was signed into law by President Bush in October 2006. The Military Commissions Act allows the government to hold detainees indefinitely, gives them no chance to challenge their detention, and condones the use of torture and coercive treatment.

I opposed this badly flawed bill because I believe that it is possible to fight terrorism ferociously while still protecting the bedrock civil liberties enshrined in our Constitution. The Military Commissions Act fails to meet this test. The Act undermines the American values upon which our country was founded, damages our nation’s reputation abroad, and may make Americans, including our brave soldiers fighting in Iraq and Afghanistan, less safe.

Because of this, I have used my seat in the Senate to try to correct the Military Commissions Act’s misguided provisions. For example, in September 2007, I supported an amendment to the 2008 Department of Defense authorization bill that would have restored the right of habeas corpus to detainees. Unfortunately, this amendment was filibustered. You may also be pleased to know that I have cosponsored Senator Chris Dodd’s Restoring the Constitution Act, S. 576. Among other things, this bill would appropriately limit the application of the “unlawful enemy combatant” designation to individuals actually detained on the battlefield, restore the constitutionally protected right of habeas corpus to all detainees, and prohibit the use of evidence gained by torture or coercion. This bill has been referred to the Senate Committee on Armed Services, where it awaits further consideration.

Senator Wyden has been vindicated by today’s Supreme Court decision.

In the beginning, I said “the good news today…” which might lead one to suspect that there was also some “bad news.” The bad news today that four of the nine Justices of the Supreme Court—Chief Justice Roberts and Justices Scalia, Thomas, and Alito —dissented, which is a warning that four of nine Justices sworn to uphold the Constitution do not so value the bedrock constitutional provision of habeas corpus. Justice in the land hangs by a thread.

When I began to this political blog in January, I said it would be constructed around these words of Wendell Berry—a farmer, essayist, conservationist, novelist, teacher, and poet:

“The past is our definition. We may strive, with good reason, to escape it, or to escape what is bad in it, but we will escape it only by adding something better to it.”

Today may be a day when “something better” was added to our history, even if by only a 5-4 vote.

- Milo