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Published on Friday, June 13, 2008 by The Progressive

A Great Decision on Habeas Corpus

by Matthew Rothschild

The Supreme Court, by the narrowest of margins, came down with a great decision when it affirmed the habeas corpus rights of detainees in Guantanamo.

The decision, issued on June 12, could not have been clearer.

The Court ruled, 5-4, that the section of the Military Commissions Act effectively denying habeas corpus to detainees was unconstitutional.

In a ringing tone, Justice Anthony Kennedy, who wrote the majority decision, concluded by noting that our security depends not only on a "sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict." Security also depends on "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."

Noting that "few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person," the Court stood up for itself and for all of us.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Kennedy wrote. "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law."

This case was an instance where the Executive Branch and the Legislative Branch conspired to go outside the framework of that law. The court had twice ruled against the Administration's policies in Guantanamo, so Congress passed the Military Commissions Act (MCA) in 2006 in response. That act denied detainees of essential elements of the writ of habeas corpus, the right to challenge their detention adequately in court.

The Supreme Court on Thursday said that both Congress and the Executive Branch overstepped their bounds and landed in unconstitutional territory.

It cited Article 1, Section 9, of the Constitution, which states, in part: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

The Court ruled that the section of the Military Commissions Act dealing with detainee rights "does not purport to be a formal suspension of the writ" so it is invalid on that basis alone.

The Court also rejected the Administration's claim that because the detainees are being held in Guantanamo, the judicial branch doesn't have authority to rule on their treatment.

"The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint," the Court pointed out. "Our basic charter cannot be contracted away like this."

It even referred to the bedrock Marbury v. Madison case of 1803, noting it is the Court's job to decide "what the law is," not Congress's or the President's.

"The political branches," it said, do not "have the power to switch the Constitution on or off at will."

And the Executive is especially ill-equipped to do so.

"The test for determining the scope of this [habeas corpus] provision must not be subject to manipulation by those whose power it is designed to restrain," the Court ruled.

On specifics, it ruled that the Pentagon's combatant status review tribunals "fall well short" of what is necessary.

It said that the prisoner must have a "meaningful opportunity to demonstrate that he is being held pursuant to 'the erroneous application or interpretation' of relevant law." He doesn't have that in Guantanamo, the Court said. "The detainee has limited means to find or present evidence to challenge the government's case against him," the decision said. "He does not have the assistance of counsel and may not be aware of the most critical allegations. . . . There are in effect no limits on the admission of hearsay evidence . . . [and] the detainee's opportunity to question witnesses is likely to be more theoretical than real."

The habeas court also must be able consider "evidence not presented or reasonably available to the detainee" at the time of his status review tribunal.

And the decision said that the court that hears a habeas corpus challenge has one other crucial authority that Bush and Congress denied it: the authority to free the prisoner.

"The habeas court must have the power to order the conditional release of an individual unlawfully detained," the decision said.

Finally, given that some of the detainees have been held for six years without the privilege of habeas corpus, the Court ruled that "the detainees in these cases are entitled to a prompt habeas corpus hearing."

This decision was a victory not only for the detainees. It was a victory for fundamental human rights. It was a victory for our Constitution. It was a victory for the separation of powers, and for the authority of the judicial branch to decide what is the law of the land.

The 5-4 ruling, with Kennedy joining the four liberals, brings into sharp relief how fragile is the balance on the court, and how the next election may tip that balance.

To give you an idea of how the court might swing if Kennedy or Stevens or Souter or Ginsberg or Breyer were to step down when a Republican is President, check out the dissents.

Chief Justice Roberts scolded the majority for striking down what he somehow managed to term "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." Roberts said the Court extended the Great Writ "to a jurisdictionally quirky outpost, with no tangible benefit to anyone."

Justice Scalia said the decision "warps our Constitution" and, taking a leaf from Dick Cheney's playbook, said it help the terrorists. "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," he wrote. "It will almost certainly cause more Americans to be killed."

Fortunately, the Roberts and Scalia views did not prevail. Not yet.

Matthew Rothschild is the editor of The Progressive magazine.

Copyright 2008 The Progressive Magazine

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