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What Would People Think?

Friday, June 13, 2008

Today Is The Greatest....Day for Rule of Law

[Note: Yes, technically the Boumediene v. Bush decision came out yesterday. But I wrote this yesterday and then my Internet went kablooie, so I could only post this today. I'm keeping the "today" language for dramatic effect and to keep the Smashing Pumpkins reference in my title.]

Today is a great day for the rule of law.

Today, the Supreme Court of the United States has repeated that the President cannot lock you up without giving a reason, throw away the key, and deny you the right to challenge the basis of your detention in federal court.

Today, the Court has declared that the political branches cannot switch the Constitution on and off at will.

In Boumediene v. Bush, the Court held that detainees at Guantanamo Bay have the right to challenge their designation as "enemy combatant" in federal court. Previously, in Hamdi v. Rumsfeld the Court said that people designated "enemy combatants" on nothing more than the President's say-so must be given the right to challenge that status before the President can lock them away for eternity. In response, the Pentagon created Combatant Status Review Tribunals (CSRT)- a kangaroo court in which the detainees had no lawyer and no right to actually see the evidence against them.

In addition, a compliant Republican Congress passed the Detainee Treatment Act and the Military Commissions Act, which - without saying as much - took away the right of habeas corpus: that is, the right to challenge the basis for one's detention. The Constitution allows Congress to do this...if (1) it does so explicitly, and (2) it does so in times of "rebellion or invasion." In the DTA and MCA, Congress limited the jurisdiction of federal courts to hear appeals of CSRTs......but never actually said they were taking away habeas corpus.

"Oh, no you didn't!" says the Supreme Court. If you're going to take away the right to challenge one's imprisonment in court, you have to do it explicitly and do it in times of rebellion/invasion. No tip-toeing around it.

But the important point is this: Now someone held prisoner by nothing more than the President's say-so (backed up by a meaningless, practically unreviewable kangaroo court) will be able to have an independent judiciary review the evidence and determine whether there is actually a real reason for detaining him....whether he, in fact, IS the enemy.

To clear up some confusion: No, this won't throw open the doors to Guantanamo Bay. Contrary to Justice Scalia's alarmist dissent, the Supreme Court didn't order a mass exodus of terrorists. Khalid Sheikh Mohammed will probably never be released and rightfully so. The Court only ordered that detainees be given a fair chance to challenge the basis for their detention. KSM and his ilk, if given a fair chance, would still lose.

To clear up another point: this case isn't about military commissions (the military tribunals created to try a small fraction of the detainees for war crimes/terrorism). This case was only about detaining people regardless of whether they are being accused of a crime.

(Personally, when it comes to military commissions, I'd like to see something modeled upon military courts martial, the system used for trying soldier accused of crimes. With a few modifications, they just might work. Courts martial have dealt with issues like classified evidence more than most other forums. In that opinion, I'm basically following the lead of the top Air Force lawyer in the Gulf War, and my former professor, Scott Silliman. I figure he knows a thing or two about the military and military law.)

So, to conclude, today was yet another victory for law, human rights, and common sense. It was another blow to the idea that an unlimited, indefinite, global war means the government has unlimited power.

Ya done good, SCOTUS.


  • Better late than never. But I would venture to say the whole debacle has created pink ribbon scars that will never forget.

    By Blogger Mike, at 6/16/2008 9:56 AM  

  • Scalia's dissent, I believe, sets the record for "least amount of legal reasoning used in a Supreme Court opinion." Or if it doesn't, it comes close.

    By Blogger Jeff, at 6/16/2008 3:29 PM  

  • I dunno Jeff... you ought to read some of O'Connor's opinions. They were pretty much made up of statements like "it would be sad if X..." or "won't someone think of the children?"

    Though Scalia here certainly gives her a run for the money.

    I was excited to see this decision. Let's just hope the gun one isn't a total disaster.

    By Blogger Matthew B. Novak, at 6/17/2008 10:24 AM  

  • An offshoot of this decision that you dirty liberals might appreciate: now I'm gonna have a difficult time voting for John McCain.

    By Blogger Mike, at 6/17/2008 10:42 AM  

  • Oh, and was Hamster Huey involved in your Internet incident? And was it gooey?

    By Blogger Jeff, at 6/19/2008 3:05 PM  

  • Jeff, I'm very proud of your Calvin and Hobbes reference. I thought only Mike and I had achieved that level of stuffed-tiger worship.

    By Blogger Ben, at 6/20/2008 1:51 PM  

  • Going to write today about how today is the greatest day for the rule of law?

    By Blogger Andy, at 6/26/2008 12:37 PM  

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