The Rule of Law in Time of War
June 13, 2008
Yesterday was an enormously important day for the rule of law in this country. In his decision that overturns administration policy and gives prisoners in Guantanamo Bay the right of habeas corpus, Justice Anthony M. Kennedy declared, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
Finally! On September 12, 2001, the day after the attacks on the Twin Towers and the Pentagon, I expressed concern about “the impact that this violence will have on our own humanity.” Things got worse than I had ever imagined possible, so I am relieved to see the Supreme Court reversing this trend. It has come late, but the issue needed to be addressed by the court, because it was so much more than a matter of policy, which most certainly was going to change with the new administration anyway.
Justice Antonin Scalia’s dissenting opinion that national security trumps the Constitution is a non-starter and an embarrassment. Here’s hoping that the current trend away from such thinking continues, but that will depend on the future president and his Supreme Court picks. Gwen Ifill of Washington Week pointed out this evening that Chief Justice John Roberts characterized the majority decision as “judicial activism.” Reducing the defense of habeas corpus to such a term gives me pause, even as I celebrate the majority decision.
Entry Filed under: Supreme Court, human rights, war on terror. Tags: Al Odah v. United States, Anthony Kennedy, Antonin Scalia, Boumediene v. Bush, Guantanamo Bay, habeas corpus, John Roberts, Supreme Court, war on terror.
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1. Mark Stoneman | June 13, 2008 at 11:31 pm
I’m still trying to understand opposing viewpoints and will have to do more reading in the coming weeks. So far the main one I’m hearing—expressed by Charles Krauthammer on “Inside Washington” tonight—is that these guys are getting more rights than POWs in previous wars ever did.
The problem with that analogy is that we were fighting a war against another state that would sooner or later end with a surrender. That’s not the case here, even if Krauthammer said the terrorists could surrender. It sounds like Bush’s metaphor of war for understanding our muli-layered fight against terrorists is being taken as a reality, and parallels are being drawn willy-nilly with the past that have no real bearing on the present. But maybe I’m missing something.
2. jan4insight | June 14, 2008 at 11:48 am
Mark, thank you for bringing this important issue and bringing it to our attention. Krauthammer is off base, as usual. The problem with his argument is that the detainees have never been charged with anything, and most are not even combatants but are innocents who were picked by bounty-hunters. I’m preparing a new post for my blog with more info and a call to action – it will be up in a day or so – but in the meantime, here some links to sites that have been following this issue:
http://www.amnestyusa.org/torture
see also: http://www.democaracynow.org
3. Barry | June 23, 2008 at 9:43 am
I have not seen the oposing viewpoints – but they may be based simply on that the Constitution is for our country and the citizens thereof. I am not arguing a point one way or another – just that perhaps that is their perspective.
All habeous corpus was for was that the detaining agency has to produce the detainee for court – to plea, to have bail set, etc. It is simply “where is the body” I don’t think we have to wonder about where the detainees are, many organizations have seen these prisoners, other rights may be more infringed than habeous corpus.
4. Mark Stoneman | June 23, 2008 at 9:55 am
The issue, Barry, is that the executive who is holding someone prisoner is supposed to justify the detention before an independent judge. Till now we’ve had the executive acting as both executive and judiciary, with the result that the executive could, in theory at least, do more or less what it wanted to.
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