The Rule of Law (finally) Wins the Day

In a stunning decision by this arcane Supreme Court, in a narrow 5-4 ruling the Court rebukes not only the Bush Administration, but slaps Congress for passing a law that does not pass Constitutional muster.

The ruling that gives Guantanamo Bay detainees the right to challenge their detention is a ringing endorsement for the rule of law. In a ringing tone, Justice Anthony Kennedy, who wrote the majority decision, concluded by noting that our security depends not only on a “sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict.” Security also depends on “fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.”

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Kennedy wrote. “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

This case was an instance where the Executive Branch and the Legislative Branch conspired to go outside the framework of that law. The court had twice ruled against the Administration’s policies in Guantanamo, so Congress passed the Military Commissions Act (MCA) in 2006 in response. That act denied detainees of essential elements of the writ of habeas corpus, the right to challenge their detention adequately in court.

The Court ruled that the section of the Military Commissions Act dealing with detainee rights “does not purport to be a formal suspension of the writ” so it is invalid on that basis alone.

But, simply at its core the decision cements the rule of law and not the fear mongering that has ruled the day since September 11, 2001. At issue was Article 1, Section 9, of the Constitution, which states, in part: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” The court noted the long history of habeus corpus and the bedrock principal of Marbury v. Madison noting it is the Court’s job to decide “what the law is,” not Congress’s or the President’s.

On specifics, it ruled that the Pentagon’s combatant status review tribunals “fall well short” of what is necessary.

It said that the prisoner must have a “meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” He doesn’t have that in Guantanamo, the Court said. “The detainee has limited means to find or present evidence to challenge the government’s case against him,” the decision said. “He does not have the assistance of counsel and may not be aware of the most critical allegations. . . . There are in effect no limits on the admission of hearsay evidence . . . [and] the detainee’s opportunity to question witnesses is likely to be more theoretical than real.”

The habeas court also must be able consider “evidence not presented or reasonably available to the detainee” at the time of his status review tribunal.

And the decision said that the court that hears a habeas corpus challenge has one other crucial authority that Bush and Congress denied it: the authority to free the prisoner.

“The habeas court must have the power to order the conditional release of an individual unlawfully detained,” the decision said.

Finally, given that some of the detainees have been held for six years without the privilege of habeas corpus, the Court ruled that “the detainees in these cases are entitled to a prompt habeas corpus hearing.”

This decision was a victory not only for the detainees. It was a victory for fundamental human rights. It was a victory for our Constitution. It was a victory for the separation of powers, and for the authority of the judicial branch to decide what is the law of the land.

Scalia and Roberts on the Court rebuke the decision and said it "helps the terrorists." One wonders what part of the law "helping the terrorists" can be found. Is it a statute? A regulation? He said in his dissent the decision will almost certainly assure more Americans will be killed. Scalia is a political actor and does not hide his political intentions any more than does Cheney or Bush. It is a philosophy where everyone who is of Arab descent or is a Muslim is an acceptable target to detain forever. It matters not that Habeus Corpus finds its roots in the 12th century and is embedded in our Constitution as much, if not more than Freedom of speech. Shame on these shallow figures who will be interpreting, ahem making law for the next 25 years.