Friday, June 13, 2008

The Constitution vindicated

The ruling by the Supreme Court allowing the Guantanamo detainees to file habeas corpus motions in U.S. courts was welcome, perhaps even overdue. Here's a link to the Register editorial commending it; note that we got more critical comments than praise from readers. I think it explains the importance of habeas corpus to a society with any hope of being free pretty well. I'm frankly shocked that conservatives especially, at least those who claim to have any respect at all for the U.S. Constitution, could be so critical, but most of them are positively apoplectic. It's another example of how war warps peoples' judgment and endangers liberty.

It is simply breathtaking how thoroughly the Bush administration has distorted the constitutional order and expanded executive power to an extent even Hamilton, the founder most friendly to executive power, who commended "energy in the executive," would find downright shocking. To think that the Bushies thought they could just hold people indefinitely, some for 6 years, without charges or access to anything resembling an impartial arbiter. Even the military prosecutors first assigned to prosecute detainees were shocked at how blatantly the administration politicized the process, and several have quit and criticized the process severely.

The Bushies have been slapped hard by the high court, a sign that there is still some durability in the Madisonian separation of powers arrangement designed to protect liberty -- not that it's perfect, but it still sometimes works. The Bushies brought it on themselves, with their arrogant determination not to classify them as POWs or to offer anything resembling due process. It's quite possible that there's no reason for Guantanamo to be kept open any longer now. The administration obviously chose it so they could argue that it wasn't on U.S. soil, so the constitution didn't apply. I would say shockingly cynical but nothing this administration does shocks me any more. The Supremes shot that one down. Here's a link to a Scotusblog post with links to a variety of coverage and commentary, and a pretty good summary.

I talked to Tim Lynch over at Cato, and he stressed what had been in the Cato amicus brief: that the key was not whether Guantanamo is U.S. soil, but that the Supreme Court has jurisdiction over the president and secretary of defense, so it can prevent them from denying habeas corpus wherever in the world they give orders to do so. Otherwise they could simply move prisoners to foreign soil and mistreat them at will. Tim found one sentence in the 70-page decision he thought came close to expressing his view: that the scope of habeas corpus "must not be subject to manipulation by those whose power it is designed to restrain," but it's not explicit enough to suit me.

1 comment:

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