Restoring Habeas Corpus to American Jurisprudence

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With today’s 5-4 decision in Boumediene v. Bush, the United States Supreme Court took an enormous step in re-establishing justice, human decency, and the fundamental rights of the individual in the face of the awesome power of the state as the guidestars of American constitutionalism. The Court held that those imprisoned by the United States for the past six years at Guantanamo Bay are entitled to timely judical review of the charges against them in U.S. Federal courts.

In the end, it seems, the Court was unwilling to let the high-handed authoritarianism of King George of America eviscerate the ancient principle of habeas corpus, codified as early as 1215 in the Magna Carta in reaction to the high-handed authoritarianism of King John of England.

I will not present a full commentary on the Court’s opinion — or on the disheartening dissenting opinions written by Chief Justice Roberts and Justice Scalia. You can read the slip opinion for yourself; and the web and the mainstream media will be full of commentary and celebration regarding this important reclaiming of moral authority within the basic structure of American jurisprudence. As always, the brilliant Dahlia Lithwick nails it in her piece on Slate.

There is one sidelight, however, that caught my attention.

In his bitter dissent, Justice Scalia grimly predicts that the Court’s ruling will directly produce further acts of terror against the United States. How? By leading to the release of prisoners found neither to be enemy combatants nor to have engaged in illegal acts of violence against the United States. In support of this provocative augury, Justice Scalia cites the very Washington Post story about which I complained in a letter to the editor, which the Post published. To his credit, and unlike the Post story, Justice Scalia notes that the former-prisoner-turned-jihadi had been exonerated by the U.S. military of all charges prior to release.

It may strike you as entirely plausible that those held for years in Guantanamo and subsequently acquitted of all crimes might be so embittered by the experience of their captivity as to become active enemies of America. That may be every-bit as dangerous as it is likely. It is shocking, however, that four-ninths of the United States Supreme Court find compelling justification in this scenario to imprison innocent men for life without trial in a constitutionally recognized judicial proceeding.

12 Responses to “Restoring Habeas Corpus to American Jurisprudence”

  1. 1 hysperia 13 June 2008 at 2:07 am

    Thanks for pointing this out. The majority is slim indeed. It’s also not reassuring to know that “King George”, as you call him – but I don’t think King George was as bad! – will likely try to fashion legislation to provide some sort of review process at Guantanamo – the justices seem to be saying only that no adequate process is in place and not that no process othe than habeas could be acceptable. At the very least, such a move would cause further delay.

    There is something good happening in this decision. But there are certainly still things to worry about.

  2. 2 thatsrightnate 13 June 2008 at 4:22 am

    I completely disagree with your interpretation of habeas copus. How can releasing “innocent” jihadis make us any safer.

  3. 3 Claude 13 June 2008 at 5:29 am

    The point you choose to gloss over, either on purpose or due to ignorance, is that the U.S. constitution does not apply to non U.S. citizens that have never set foot on American soil.

    To grant the rights of American citizens to enemy combatants captured during a war is unprecedented, especially when the decision is made by the branch of government with the least constitutional power to conduct war.

    Whether the war, in your eyes, is illegal or not is not part of the discussion. The question is simple, are non-citizens entitled to U.S. constitutional protections? The answer is just as simple, a resounding no.

  4. 4 Truth and Reason 13 June 2008 at 6:52 am

    Thanks for commenting on my post. I left this comment in my thread, but wanted to leave it here as well.

    mbjesq, the following paragraphs will answer your questions and prove my point that liberalism is all emotion. It’s clear that you have no evidence to back up what you are saying other than an failed attempt of condemnation.

    In establishing the detention facility at Guantanamo Bay, President Bush relied on a Supreme Court precedent of more than a half century’s standing, Johnson v. Eisentrager (1950), which held that nonresident alien enemy combatants had no right to habeas corpus. As Scalia explains:

    “Had the law been otherwise, the military surely would not have transported prisoners [to Guantanamo], but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.”

    This points to a key limitation in today’s ruling. The majority distinguished Guantanamo from the facility at issue in Eisentrager–a U.S.-administered prison in occupied Germany–on the ground that although the Guantanamo Bay Naval Base is technically on Cuban territory, America exercises “complete jurisdiction and control” over it. Thus, detainees have constitutional rights pursuant to today’s ruling only if they are held at Guantanamo.

    There is little advantage to the U.S. in sending enemy combatants to a facility where they will immediately be able to lawyer up, and indeed, Guantanamo has admitted few new detainees in the past several years.

    It’s possible that Scalia is wrong when he predicts more Americans will die as a result of this ruling. It may be that al Qaeda is a weak enough enemy that America can vanquish it even with the Supreme Court tying one hand behind our back. Anyway, keeping future detainees away from Guantanamo should prevent them from coming within the reach of the justices’ pettifogging.

    Perhaps decades from now we will learn that detainees ended up being abused in some far-off place because the government closed Guantanamo in response to judicial meddling. Even those who support what the court did today may live to regret it. Source.

  5. 5 Suzie-Q 13 June 2008 at 7:11 am

    Hi Mark,

    Thanks for visiting my blog. You have an interesting blog and I have added you to my blogroll. ;)

  6. 6 pmitchum 13 June 2008 at 10:54 am


    Thank you for visiting my blog. As I said before, I understand what you mean and wholeheartedly agree… Yesterday was a phenomenal day for American constitutionalism and sad to know that four-ninths of the highest court in the land would think that it is a good idea to interrogate, torture, and victimize men who could be innocent. It makes you think about our “democratic” system of government

    President Bush said that he would still try to seek new laws to override the Supreme Court decision. That is shameful.

  7. 7 mbjesq 13 June 2008 at 11:03 am

    Claude, I address your ignorant claim that the U.S. Constitution applies only to American citizens here.

    Truth and Reason, the Johnson v. Eisentrager case is quite well distinguished in the Court’s opinion, Boumediene v. Bush, 533 U.S. ___ (2008), Slip Opinion at 32-34.

    Thatsrightnate, releasing innocent men from prison makes us collectively safer because we live in a land where we can be more certain that our own rights will not be trampled on by an authoritarian government. It is also, not incidentally, the right and just thing to do.

    Hysperia makes a good point. Congress needs to be less malleable and less complicit in the erosion of constitutionalism at the hands of the so-called unitary executive theory.

    Thanks for the commentary.


  8. 8 Quix 13 June 2008 at 11:22 am

    Thanks for commenting on my blog and it’s good to see that there are other people out there who are in favor of a return to the rule of law.

    As you say though, it’s heart-breaking to know that 4/9ths of the Supreme Court doesn’t agree with the provisions set forth by the Constitution. It’s also amazing just how close we came to a Supreme Court which wasn’t willing to defend the Constitution and Habeas Corpus.

    Of course, as has been mentioned, President Bush has indicated that he’ll try to find a way to circumvent the Supreme Court’s ruling so we’ll have to see if anything actually changes.

  9. 9 hysperia 13 June 2008 at 11:31 am

    Well, y’all, I remain firm. If the US is so intent on not taking responsibiity to the detainees at Gitmo, and that seems to be the case, then let Cuba have sovereignty over its own land and over them. At this historical juncture, I have much more faith in the Cuban legal system than I do in the American one. These humans have to be within the legal jurisdiction of some state. While I laud the decision in Boumediene, it is a very thin wedge, as has been pointed out by many intelligent people.

    By no stretch of the imagination can Anthony Kennedy et al be described as anything but conservative in this decision. They’ve relied very strictly on precedent. But, more to the point, they’ve adhered to the principles of separation of powers in the US Constitution. The Bush administration has so successfully pulled blinders over the eyes of some Americans that people who would normally fight to the death over their founding document, particularly for instance as regard to the “right to bear arms”, that they don’t seem to notice that these decisions are actually as or more important for the American people as a whole than they are for a few hundred unfortunate humans at Guantanamo Bay.

  10. 10 mbjesq 30 April 2013 at 9:53 pm

    Is anyone still interested in the people detained in Guantanamo Bay? Or have we simply forgotten about them?

    Here’s a reminder: Slate’s multi-part excerpts from “The Guantánamo Memoirs of Mohamedou Ould Slahi”. It is absolutely compelling reading.

    The question of what to do with former GTMO prisoners who have never been charged with crimes remains a tricky problem for the Justice Department. Attorney General Eric Holder, hardly an intrepid champion of human rights, continues the Bush-era tradition of timidly avoiding difficult moral or practical issues with the expediency of indefinite detention.

    Former GTMO Chief Prosecutor has some ideas about what the US ought to do about guys like Mohamedou Slahi. Read them.


  11. 11 negowatch 4 May 2013 at 10:27 pm

    Hunger strike proceeds, as does the shame. So, Obama made a statement the other day (forgive my vagueness on dates as travelling). Where can they send prisoners who by now must be mighty pissed at the US government? Ecuadorean Embassy in London is a tight fit!

  12. 12 negowatch 4 May 2013 at 10:30 pm

    Have you just added more to the blog? Just so glad you’re raising this issue and kicking it onto our radar screens – oh, and by the way, it’s always beena fuck up to be King George, whichever one you pick.

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