The Tenuous Victory of Liberty in Boumeddiene vs. Bush

"The [habeas corpus Suspension] Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the 'delicate balance of governance' that is itself the surest safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality opinion). The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account."

So wrote Justice Anthony Kennedy for the (slim) majority in Boumeddiene vs. Bush, the latest of many cases with Bush (or Rumsfeld) designated as the losing party in a civil liberties case. Bush loses all these cases because he opposes Constitutional liberties, and the U.S. Supreme Court, with its current membership, feels a responsibility to uphold them. At issue was whether Guantanamo inmates have the right to challenge the basis of their detention through a writ of habeas corpus. It is a demand to the detaining authority (the jailer) to produce the facts justifying the incarceration, or, in simpler language, to answer this question from a prisoner: why am I here?

Led by Bush's Senate errand boy, Lindsey Graham (R, South Carolina), the Congress passed a Military Commissions Act which deprived the federal courts of habeas jurisdiction. As I have written before, there were numerous Senators, including Arlen Specter of Pennsylvania, who voiced their concern on the record that the MCA was unconstitutional because of this provision and yet voted for it anyway. I don't see how such a vote can be consistent with the oath of office these guys take. Specter and others should have listened to themselves. The Supreme Court just told them that their reading was right; the MCA is unconstitutional.

The majority prevailed 5-4. If John McCain is elected, there won't be any more victories for those who support the United States Constitution for a long time. Justices Ginsberg and Stevens have held on about as long as they can. Roe vs. Wade will be overturned, and when you open up the Supreme Court Reports in future years, this is the kind of shit you're going to be reading as the majority opinion:

"America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60-61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed."

Justice Scalia, in dissent. Now, I know he's supposed to be real smart and everything. But I ask you: in what sense is this a legal argument? It is true that there are terrorists in the world who practice the Muslim religion. There have also been Catholic terrorists in Ireland, Protestant terrorists in America, Jewish terrorists in Israel, Zoroastrian terrorists in Iran, Buddhist terrorists, Hindu terrorists and atheist terrorists. It is true that many of the prisoners at Guantanamo are Muslims. But Scalia makes the same illegal, pre-scientific, pre-Enlightenment, bigoted, biased, and stupid argument that Bush makes. He assumes that because a Muslim is locked up in Guantanamo, that he's part of the "It" described above. He's the "Enemy." Go back and read Scalia's statement again. Boumeddiene himself is not even from any of these places. He's from what we used to call Yugoslavia. Whether Scalia, this fearless duck hunting buddy of Dick Cheney (they shoot caged birds together) realizes it or not, he's making exactly the same argument which justified the internment of the Japanese during World War II. Muslims attacked us (as the Japanese did at Pearl Harbor). You're a Muslim (or a Japanese). Go to jail and wait for the war to be over.

Except the "war" on terror will never be over. Many of the prisoners at Guantanamo have been there for six years without charges ever being filed. A lot of them have been held in solitary confinement and have lost their minds. And we don't know whether they should even be there because Bush has never allowed any factual test of the basis of their incarceration.

"Major General Jay Hood, commander at Guantanamo, admitted to the Wall Street Journal that '[s]ometimes we just didn't get the right folks,' but innocents remain at the base because '[n]obody wants to be the one to sign the release papers. ... there's no muscle in the system.' The federal courts are supposed to be that muscle. Today's decision ensures that they will be." Shayana Kadidal writing on the Huffington Post; Kadidal is an attorney with the Center for Constitutional Rights, lawyers for many of the Guantanamo prisoners.

The Guantanamo concentration camp will, in the eyes of history, represent one of the darkest chapters in the American experience, and it will come to epitomize everything that was wrong with George W. Bush's approach to leadership: cowardly, sneaky, weak, unfair, discriminatory, and oblivious to the basic concept of human decency.