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.