Friday, June 13, 2008

The terrible fragility of American freedom - McCain would destroy this

By one lousy vote the Supreme Court preserved a habeas corpus -- a core element of the US Constitution and a fundamental defense against tyranny.

One vote.
Editorial - Editorial - On Guantanamo - Justice 5, Brutality 4 - Editorial - NYTimes.com

... It was disturbing that four justices dissented from this eminently reasonable decision. The lead dissent, by Chief Justice John Roberts, dismisses habeas as “most fundamentally a procedural right.” Chief Justice Roberts thinks the detainees receive such “generous” protections at their hearings that the majority should not have worried about whether they had habeas rights.

There is an enormous gulf between the substance and tone of the majority opinion, with its rich appreciation of the liberties that the founders wrote into the Constitution, and the what-is-all-the-fuss-about dissent. It is sobering to think that habeas hangs by a single vote in the Supreme Court of the United States — a reminder that the composition of the court could depend on the outcome of this year’s presidential election. The ruling is a major victory for civil liberties — but a timely reminder of how fragile they are...
If McCain wins the next such vote would be Brutality 5, Justice 4.

Stop McCain.

Vote Obama.

1 comment:

Pidgas said...

"eminently reasonable"...oh?

Over 50 years ago, the Supreme Court held in Eisentrager v. Johnson "A nonresident enemy alien has no access to our courts in wartime." That case has been long held as dictum.

In that same opinion, the Court held, "In extending certain constitutional protections to resident aliens, this Court has been careful to point out that it was the aliens' presence within its territorial jurisdiction that gave the Judiciary power to act."

They also stated, "Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security."

Finally, they state unequivocally, "A nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts."

In 2004 in Rasul v. Bush, the Court (led by most of the justices in the majority for Boumediene v. Bush) contorts itself to avoid the clear binding precedent of Eisentrager. Only Kennedy voted with the majority but sought to maintain consistency with Eisentrager. Eisentrager expressly states that "it was the aliens' presence within its territorial jurisdiction that gave the Judiciary power to act." Almost desperately, Souter, Stevens, Breyer, and Ginsberg reach to a case decided in 1972 (Braden v. 30th Judicial Circuit Court of Kentucky) that never even mentions Eisentrager to rationalize their setting aside binding precedent. In that case, the Court found that a US citizen held in an Alabama prison on the basis of an indictment filed in Kentucky needn't apply for a writ in Alabama. Souter, Breyer, Stevens, and Ginsberg use that opinion to say that Guantanamo prisoners needn't be within the territorial jurisdiction of the US for them to access our courts. It's truly astounding mental gymnastics.

This is what qualifies to the NY Times as "eminently reasonable?" Wow. As CJ Roberts says in the first line of his dissent, "Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

As he goes on to point out, the writ of habeas corpus is primarily a procedural one. It affords a detained individual the right to force his custodian/imprisoner to justify the imprisonment on a legal basis. The Congress and Executive branches established such a procedure for Guantanamo detainees via the Detainee Treatment Act of 2005 - in it, the Congress set up Combatant Status Review Tribunals and gave the D.C. Circuit Court of Appeals "exclusive" jurisdiction to review decisions made by those tribunals.

The NY Times says, "The court ruled that the military tribunals that are hearing the detainees’ cases — the administration’s weak alternative to habeas proceedings in a federal court — are not an adequate substitute." Actually, the Court did no such thing. "The only law we identify as unconstitutional is MCA §7, 28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the DTA and the CSRT process remain intact."

In other words, to comply with this ruling, detainees must first proceed through the tribunals before filing for a writ! So, the Supreme Court has declared that judicial review must start _precisely_ where Congress said it should start, but the SCOTUS calls it habeas and transfers responsibility for shaping that process to ... wait for it ... the JUDICIARY!!! How "eminently reasonable!"

How, exactly, this ruling will speed up the process is as unclear as the difference between the process proscribed by the ruling and process it replaces. One difference that is clear is that the Court established that "there is constitutional habeas jurisdiction over aliens imprisoned by the military outside an area of de jure national sovereignty."

It is a mystery to me how a 5 to 4 decision by the SCOTUS that 1) declares a Congressionally crafted process unconstitutional while replacing it with a nearly identical but judicially proscribed process, 2) extends constitutional habeas rights (expressly denied by precedent) to aliens held prisoner by our military on land over which the US is not sovereign, and 3) intervenes before the D.C. Circuit Court of Appeals can even rule in the first case brought through the Congressionally crafted process (in doing so, disregarding centuries-old wisdom holding that the Court should not decide issues of constitutionality until it is "unavoidable") can be described as "eminently reasonable."

How is this a victory for "justice" rather than a naked power grab by the Judicial branch? I'd really like to know.