Supreme Court Upholds Rule of Law, Constitution
posted at 6/13/2008 3:39 AM EDT
A Victory for the Rule of the Law
By Eugene Robinson
Friday, June 13, 2008; A23
Itshouldn't be necessary for the Supreme Court to tell the president thathe can't have people taken into custody, spirited to a remote prisoncamp and held indefinitely, with no legal right to argue that they'vebeen unjustly imprisoned -- not even on grounds of mistaken identity.But the president in question is, sigh, George W. Bush, who has taken a chainsaw to the rule of law with the same manic gusto he displays while clearing brush at his Texas ranch.
Soyesterday, for the third time, the high court made clear that theDecider has no authority to trash the fundamental principles ofAmerican jurisprudence. In ruling 5 to 4 that foreigners held at Guantanamo Bay have the right to challenge their detentions in federal court, thecourt cited the Constitution and the centuries-old concept of habeascorpus. Justice Anthony M. Kennedy's majority opinion seems broad and definitive enough to end the Kafkaesque farce at Guantanamo once and for all.
"Thelaws and Constitution are designed to survive, and remain in force, inextraordinary times," Kennedy wrote. Again, it's amazing that anypresident of the United States would need to have such a basic conceptspelled out for him.
That reference to "extraordinary times"takes care of a specious argument that Bush and his legal minions haveconsistently tried to make: that when the nation is at war, as it hasbeen since the Sept. 11, 2001, attacks, the president has extraordinarypowers that allow him to do basically anything he wants.
The Bushadministration also has argued that the Guantanamo prisoners are "enemycombatants" who have no legal rights; that while U.S. citizens detainedin the "war on terror" may have some rights, foreigners do not; andthat Guantanamo is foreign soil, beyond the reach of U.S. judges. Thecourt had no trouble seeing through all this smoke.
Twice before,the court has ordered Bush to respect the rule of law. In 2006, afterthe second ruling in favor of Guantanamo inmates' rights, theadministration persuaded Congress to pass a law stripping the inmatesof any right to file habeas corpus petitions in federal courts.Yesterday's ruling struck down this law, and since the decision wasbased on the Constitution, it seemed to exclude the possibility of newlegislation that would let Bush continue his program of arbitrary,indefinite detention without judicial review.
The court alsodeemed inadequate the kangaroo-court tribunals that are held forGuantanamo inmates in lieu of proper court hearings. In the tribunals,an inmate is allowed to have a "personal representative" but not anactual lawyer -- and the inmate has no right to see the evidenceagainst him or to confront his accusers. Is it conceivable that theevidence against certain inmates might consist of witness statementsthat were obtained through the use of interrogation techniquesinvolving painful coercion that international agreements classify astorture? Amazingly, that scenario is highly conceivable. Amazingly,it's also highly conceivable -- even probable -- that some of theestimated 270 inmates at Guantanamo, imprisoned for as long as sixyears, are innocent of any involvement in terrorism and happened to bein the wrong place at the wrong time.
I say "amazingly" becauseit's still hard for me to believe that arbitrary arrest, indefinitedetention and torture continue to be debated, as if there were pros andcons. The Supreme Court has now made clear that while justice and honormay be mere inconveniences for Bush, they remain essential componentsof our national identity.
"The nation will live to regret what the court has done today," Justice Antonin Scalia wrote in a dissent, warning that the ruling "will almost certainly cause more Americans to be killed."
Everyonehopes he's wrong, of course. But if the only thing that mattered weresecurity, why would we bother to have an independent judiciary? Whywould there be any constitutional or legal guarantees of due processfor anyone? We could just lock up anyone who fit the demographicprofile of the average armed robber, say, or anyone with psychologicaltraits often displayed by embezzlers.
The Guantanamo decisionwill create headaches for the federal courts. The process of grantinghearings to the detainees will be messy, imperfect and at timesfrustrating. I'm confident that in the end the system will work. GeorgeW. Bush may not trust America's basic values and highest ideals, but Ido.