In a massive blow to the Bush Administration, the Supreme Court has ruled 5-4 in favor of the detainees at Guantanamo Bay, Cuba. In the opinion below, Justice Kennedy delivers the opinion of a lifetime: holding faithfully to the Constitution in a time of prolonged crisis.
Kennedy writes: “We hold that Art. I, §9, cl. 2, of the Constitution has full
effect at Guantanamo Bay. If the privilege of habeas
corpus is to be denied to the detainees now before us,
Congress must act in accordance with the requirements of
the Suspension Clause.” Amen, Brother, amen.
He further adds that ““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.”
While Kennedy’s opinion was an impressive treatment of the role and history of the Great Writ, Scalia’s opinion read like a snaring rant in comparison. Some highlights:
– “America is at war with radical Islamists. … Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. . . . The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed . . . The Nation will live to regret what the Court has done today.”
It was a disappointing opinion with the same fear-mongering and sensational language that we see on late night cable programs. Roberts’ dissent was more moderate but still reflected a shocking passive and reduced role of the courts.
As much as a relief as this decision is, it is important to remember how close we can to the loss of this fundamental right. What citizens need to understand is that it is meaningless how many rights are contained in a Constitution, if the government can deny you access to the courts to vindicate those rights. Kennedy’s opinion is an attempt to educate citizens on the centrality of the Great Writ. One can only hope that a few people in Congress will read this opinion and leave the Constitution alone. When Bush refers to the need for more legislation, the only obvious piece of legislation would be a formal vote to suspend habeas — a step that even these members should be incapable of doing.
For a copy of the opinion, click here.
Susan:
“Dumbed down” was a bad choice of langauge.I should have said the topic needed more time to develop. The decision was important not just for the principle reaffirming the Great Writ of Habeas Corpus (HC)by striking down Sec. 7 of the MCA*, but because of the Court’s decision to rule on whether the DTA** actually was an adequate substitute for HC, an issue which it clearly could have dodged by sending it back down to the lower court where that issue was not considered. This is extraordinary and showed me the Court is serious about sending a shot over the collective bow of those who would subvert our most basic protections.
* Military Commissions Act of 2006
** Detainee Treatment Act of 2005
Far enough,
Kudos for your wife with her insightful comparison to Bush v. Gore. Because of that unconsitutional decision, over 4,000 of our best have died with 25-30,000 maimed and upwards of 500,000 Iraqis killed because of the Supremes decision in Bush v. Gore. Scalia is a neocon hiding behind a robe. His dissent is more of a political statement than a judicial dissent.
I was delighted to see that for once (lately), the Constitution triumphed, and Bush lost. I saw JT’s and KO’s discussion, and thought it was great. I didn’t think it was dumbed down, but that’s just a non-lawyer’s perspective. 🙂
Thanks mespo, it’s up on YouTube now for those that missed it.
Caught Turley on Countdown at the ten o’clock showing discussing the case. Erudite as ever but they really dumb it down on that show. I was hoping Olbermann would lead with that story but it got second billing. My only mild complaint was Professor Turley’s white dinner jacket for such an auspicious occasion –was it Rick Pitino redux, or just Turley, Jonathan Turley?
far enough:
Insightful woman, your wife. Here’s a line from the opinion that should make every one of these bullies who inhabit our current administration quiver:
“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.”
— Justice Kennedy
5-4 is enough to win. Scoreboard. No, it does not mean that they immediately get released, but it does mean that they cannot continue on the same track as W wants, out of sight and out of the earshot of the rest of America. This gets tried in the dirty, nasty courts of America and not in some trumped up military tribunal. No wonder that Colonel got fired, err retired, last week.
another one:
“Scalia says that this decision will cost American lives. When I told my wife of his comment, she said, “Not as many as Bush v. Gore.”
Readers’ Comment in NYT:
“Any doubt about what kind of jurist Scalia is? He states in the opinion that “we are at war with radical Islamist,” but the Constitution defines when we are at war, and there has been no declaration of war by Congress, so Scalia is constitutionally wrong on that point. Then he says, the ruling “will almost certainly cause more Americans to get killed,” but there was no fact finding at the district court level, so this is mere speculation elevated to constitutional concern. Then he says, the court’s ruling leaves the system to deal with the prisoners with a “set of shapeless procedures.” How funny. Those ‘shapeless procedures’ have developed over years of constitutional litigation and go back to the abolition of the Star Chamber by the Habeas Corpus Act of 1640. Who would expect a jurist of his skill to know such things? Who knew that the Framers of our Constitution and its Amendments actually shaped those procedures by requiring due process and fundamental fairness?”
The steady erosion of Constitutional protections under Bush has been most discouraging, so this is really great news.
Yesterday on the BBC I heard a proponent of the British terror detention law speak glowingly of Bush’s powers to “deal with” terroist suspects. He even praised Gitmo. David Davis, shadow home secretary, resigned over the passage of the 42 day detention. I included some of his words below. I wonder if this ruling will effect the British law. I am hoping our congress does not trash the constitution again now that Bush is ready to come back for another try.
From David Davis on the BBC website:
In truth, 42 days is just one – perhaps the most salient example – of the insidious, surreptitious and relentless erosion of fundamental British freedoms.”
He listed the growth of the “database state,” government “snooping” ID cards, the erosion of jury trials and other issues.
“This cannot go on. It must be stopped and for that reason today I feel it is incumbent on me to make a stand,” said Mr Davis.
OTHER NEWS SITES
Warwick Courier Shadow Home Secretary to quit as MP – 1 hr ago
Daily Express David Davis quits in stand against erosion of British f
Telegraph David Davis stuns Westminster with resignation over 42-day terror law – 1 hr ago
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mespo: he certainly is a piece of work. all ego.
far enough:
ops, omit the word “sense” in line 2. I got a little carried away and didn’t hide my tracks as well as I should have.
far enough:
How a judicial texualist — even with such a lumbering intellect –could spend that much time in Charlottesville and not know any better sense is beyond me. You would think just passing Monticello would teach that “come-here”* something. Sadly, the most important thing Scalia got from his tenure at Mr. Jefferson’s school was a line on a resume.
*Scalia was a transplant New Jersey-ite. “Come-here” is our polite Virginia way of letting you know that while you may be physically present in our Commonwealth, you’ll really never be part of it. I can’t tell if its borne of elitism or pride, but it sometimes has its uses.
Scalia always struck me as incredibly childish. When he doesn’t get his way he pouts and embarrasses himself.
Professor, next time you do a show, please inform the many Americans worried about a 5-4 narrow escape that the next President can stack the court and deliver us from the four horsemen of the apocalypse.
An interesting conclusion to Scalia’s acidic dissent. Our resident religionist goes to great lengths to explain that the common law doesn’t apply to protect us despite over 200 years of precedent and thousands of years of custom, but gratuitously adds:
“Today the Court warps our Constitution in a way that
goes beyond the narrow issue of the reach of the Suspension
Clause, invoking judicially brainstormed separation of-
powers principles to establish a manipulable “functional”
test for the extraterritorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other
constitutional protections as well)….”
The Nation will live to regret what the Court has done
today. I dissent.”
I cannot tell if this last line is cautionary or precatory.
Kennedy read like a Justice and a poet:
“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.”
You nailed it, mespo. The majority (the ones who count) made no deference whatsoever to so-called unitary executive theory.
badger:
Judging from your comments, I can tell you have not read the opinion either, but are merely mouthing news reports or most likely talking points. Read it for yourself. It is clearly a return to constitutionalism and away from the one-man rule you neo-cons are so enamored over. I can hear the unitary executive theory straining and crumbling.
Professor:
In a typical habeas case, is the prisoner freed immediately if the court finds the confinement is illegal?
White House reaction: “Bush said his administration will study the ruling. “We’ll do this with this in mind — to determine whether or not additional legislation might be appropriate so we can safely say to the American people, ‘We’re doing everything we can to protect you.'”
A veiled threat?