:: :: :: :: :: :: :: :: :: :: :: :: ::
I've been asked to talk more about my comment about celebrating the return of habeas corpus: that the Supreme Court has jolted the Bush Administration forward into the 13th century.
Last Thursday, the Court declared part of the Military Commissions Act of 2006 to be unconstitutional: the part that squishes over the writ of habeas corpus. The Latin phrase literally means "you shall have the body (in court)." If you're arrested, they have to actually bring you to a courtroom at some point to tell you what you're accused of and have a judge or jury decide whether you should continue to be jailed.
In history, that's a huge huge thing. It used to be that whoever was king could just have someone thrown in jail. No questions asked, throw away the key if you like. One of the founding documents of democracy, the Magna Carta, forced old King John to use the writ of habeas corpus. No longer could English kings just toss people in jail indefinitely.
That's been part of English law ever since, and it's part of the American Constitution, until that Constitution was effectively challenged by the Bush Administration and its cadre of loyal Republicans and cowardly Democrats on Capitol Hill.
Alexander Hamilton said it well: "The practice of arbitrary imprisonments, in all ages, is the favorite and most formidable instrument of tyranny." He said it so well, in fact, that the Supreme Court quoted that very passage from the Federalist Papers in its opinion. You don't have to think of Bush as a tyrant in order to see that that practice is indeed tyrannical. And meanwhile it only takes a small act of imagination to wonder what it would be like if you, or your kid, were overseas somewhere and got imprisoned without any chance of getting a fair hearing, without any shot at the due process of the laws of that land.
The fact that the Guantanamo detainees are actually on Cuban soil, which was cynically done in order to end-run the rules Americans have to follow on our own soil, now does not matter. The Court has basically said, "No cheating. If they're held in a place that's effectively under U.S. control, then you gotta follow the rules."
Those rules are good, and they protect us, and they do not compromise any effective effort against terrorism.
There had been a claim that a law passed in 2005 (sponsored by John McCain, who has pledged to continue Bush's course), provided a good substitute for habeas corpus: the so-called "Tribunals." Of course, since the defendants aren't allowed to have a lawyer present, and aren't even allowed to challenge the evidence against them (and sometimes, as a recent New Yorker article pointed out, aren't even allowed to know what the evidence is), the Court said that this law falls "well short," and means that "there is a considerable risk for error."
They're right: whether you're Democratic or Republican, and no matter how you feel about the death penalty, you can't help but get mad about the guy who got put to death in Texas after his court-appointed defense lawyer fell asleep during the trial. How is that justice? Could a lawyer who'd stayed awake have raised a red flag at some point, and shown that they got the wrong guy? Same thing applies here, except that there's no lawyer, asleep or awake, and no actual charge, and these guys are just languishing in jail. There's no incentive to actually build a responsible case against them.
A good Republican would already know this. (Good Republicans do, and they've been horrified over the years at the astonishing liberties the Bush Administration has taken: what happened to not trusting Big Bad Government? This is why ultra-conservative guru William F. Buckley refused to endorse Bush in 04.)
A quick quiz question for you: what individual right was mentioned in the main body of the Constitution, before the Bill of Rights was even enacted?
If your answer was habeas corpus, give yourself a point. The Founders were big believers in limiting government power whenever and wherever they could. They understood that power corrupts, and anyone with power will inevitably abuse it. The Supreme Court's decision mentions this fact, and notes that
"the Framers viewed unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom."
They go on to say:
"The Framers' inherent distrust of government power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty."
When we abolish a person's freedom from arbitrary imprisonment, we turn the clock back to before the Constitution, and even further: we turn it back to before the Magna Carta. Even the Redcoats couldn't just throw the American rebels into jail without having to show reason in a court of law.
You might object, as some do, by saying that this is war, and we're in extraordinary circumstances and sometimes you have to play dirty to get things done, and you can't have someone following you around making you cross all the Ts while you're trying to fight global terrorism. But sometimes those Ts are what we're fighting about in the first place. The Court says it well:
Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and interdict. There are further considerations, however. Security subsists, too, in 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 separation of powers.
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 law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, part of that law.
That makes me want to stand up and cheer.
There is another element to all this, and it concerns the future: McCain was a major player in getting the Military Commissions Act passed. Obama voted against it. When it became clear that it would pass, Obama tried to add an amendment that would give it a time-limit of five years. The Act passed; the amendment didn't. For all we knew, we were now in an era in which our own government could (did; does) put people in prison indefinitely, with no charges and no due process.
The only thing that saved us was the Supreme Court, who took a historic stand. But even then it was five to four, lined up in a wearily predictable way. The four who dissented — who wanted to keep things the way they were headed — were Roberts and Alito, Scalia and Thomas. And John McCain has referred to Roberts and Alito as the kind of judges he'd like to see more of. Obama, asked the same question, named Breyer, Souter, and Ginsberg, who all voted to reinstate this basic right.
The four dissenters are all young and healthy enough to last a good long time. Stevens and Ginsberg are 88 and 75. So, in thinking about who you want to vote for as our next President, your considerations might include the question of who will best protect the freedom from tyranny that we're supposed to be fighting for.
