Yes, We Have No Bananas [4:44 pm]
But at least we do have us some habeus
Sad that it was a 5-4 decision, but thank goodness it came down this way — something to think about in the voting booth this November: Justices Rule Terror Suspects Can Appeal in Civilian Courts — the opinion
The real tragedy is this quote from our leader in this Reuters article: Top court rules for Guantanamo prisoners (pdf). Yes, it may be out of context, but as written it suggests a need for a return to the civic textbooks:
“We’ll abide by the court’s decision. That doesn’t mean I have to agree with it,” Bush told a news conference in Rome, where he was on a weeklong European visit. “We’ll study this opinion and we’ll do so … to determine whether or not additional legislation might be appropriate.”
Hmmm — what do you think?
The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system.
[...] This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers’ inherent distrust of governmental 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. [...]
[...] Post-1789 habeas developments in England, though not bearing upon the Framers’ intent, do verify their foresight. Those later events would underscore the need for structural barriers against arbitrary suspensions of the writ. [...]
[...] The prudential barriers that may have prevented the English courts from issuing the writ to Scotland and Hanover are not relevant here. We have no reason to believe an order from a federal court would be disobeyed at Guantanamo. No Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station. The modern-day relations between the United States and Guantanamo thus differ in important respects from the 18th-century relations between England and the kingdoms of Scotland and Hanover. This is reason enough for us to discount the relevance of the Government’s analogy.
[...] Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. [...]
[...] 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. Cf. Hamdi, 542 U. S., at 564 (SCALIA, J., dissenting) [...]
[...] To the extent any doubt remains about Congress’ intent, the legislative history confirms what the plain text strongly suggests: In passing the DTA Congress did not intend to create a process that differs from traditional habeas corpus process in name only. [...]
[...] We do hold that when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release. [...]
[...] The absence of a release remedy and specific language allowing AUMF challenges are not the only constitutional infirmities from which the statute potentially suffers, however. The more difficult question is whether the DTA permits the Court of Appeals to make requisite findings of fact. [...]
[...] There is no language in the DTA that can be construed to allow the Court of Appeals to admit and consider newly discovered evidence that could not have been made part of the CSRT record because it was unavailable to either the Government or the detainee when the CSRT made its findings. This evidence, however, may be critical to the detainee’s argument that he is not an enemy combatant and there is no cause to detain him. [...]
[...] MCA §7 thus effects an unconstitutional suspension of the writ. In view of our holding we need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement.
But here’s the real killer:
Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to 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 the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.
Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. [...]
It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. 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. [...]
And imagine the outcome if, say, John Yoo were to get a seat on this court.
Later: Newt Gingrich gives us the talking points for those who can’t bear this decision: Face The Nation: Gingrich Thinks SCOTUS Gitmo Decision “Could Cost Us A City” — as the commenters point out: “you mean in addition to New Orleans and
Grand Cedar Rapids?” (I couldn’t believe it when I heard him say it on Face the Nation myself)