The Presidency has limits

On Thursday morning, the Supreme Court handed down its decision in BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE UNITED STATES, ET AL. and in doing so restored one of them most precious rights to the country.

Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Tali-ban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court reversed,holding that 28 U. S. C. §2241 extended statutory habeas jurisdiction to Guantanamo.
This is good news for all of us, not just those out to harm the US as some commentators claim. The decision essentially over turns key parts of the Military Commissions act of 2006, which said in part:

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

What sometimes gets lost with the phrase Habeas Corpus and assorted Latin terms is what this actually means. Essentially the right of Habeas Corpus means that someone who is arrested gets to go before a judge to challenge that arrest.

Without that right, the President can imprison anyone forever -- not trial, no testimony, no evidence. It's entirely at the executive's whim.

Now many will say that wasn't true. In fact the act above says it only applies to an enemy combatant.

The problem is there was no review.

So say for example, an natural born US citizen says something the President doesn't like. Maybe that person tells jokes on TV or perhaps just blogs occasionally about politics. Or maybe they painted their house an offensive color. It doesn't really matter what they did.

If the President got upset, he could have declared that person a non-citizen enemy combatant and locked them up in Guantanamo. Before this new ruling, that person would be there until the administration changed it's mind.

Some might say this is impossible because the person clearly is not an enemy combatant and is absolutely a US citizen. They can't be detained.

The problem is that without Habeas Corpus, there is no way for that citizen to make that argument. They can't go to court to challenge that detention. They are detained because the President said so and there is no way to object to that. Without Habeas Corpus there is no way to challenge an error by the administration or to challenge wrong doing by the administration.

This is why the ruling was so critical. Independent judicial review is essential to the survival of our country. The long history of separation of powers is what keeps us from turning into Zimbabwe. Our President shouldn't be allowed to arbitrarily detain anyone he chooses without independent review.

I'm not saying that President Bush used this power in an aritrary way like the examples is used above. What is terribly frightening is that he could have. He could have thrown Scott McClellan, Cindy Sheehan, Nancy Pelosi, Al Franken, or anyone else in prison with no judicial review.

That is a a power no President should ever have.


Anonymous said...

Nice commentary on a very difficult and charged subject. I think you pretty much hit the basics of the concept on the head. You should seriously consider fleshing this post out a bit and making it into something of a dummies guide to habeas corpus.

Haley H said...

Hear, hear!

It's such a relief to see Habeas Corpus upheld finally. It's one of the concepts and rights that keeps this a free country.

Relax Max said...

Jeez, you guys are acting like Americans have been denied their right of Habeas Corpus, and now, thank God, they have that right back.

Thank you for your treatise on what the clause means. But also have the guts to tell your readers that it has nothing to do with anybody except Americans, and that the U.S. Constitution is not meant to cover the whole world.

Holy cow Cromely! Talk about misdirection!

Graham du Plessis said...

Welcome to the real world America!!
Suspected Terrorist or not, it is evil to detain someone for 4 or 5 years without the right of habeas corpus. It is also evil to treat them as inhumanely as they were at Guantanamo bay.

Whilst I agree that any person who is a member of a known terrorist organisation should be dealt with severely. They should have the right to habeas corpus.

America cannot detain these suspected terrirorst indefinitely under American law, then treat them under laws similar to that of Zimbabwe and Robert Mugabe.

The fact is many were released after years of incarceration and humiliation with little more than an apology from the bush admisistration.

The US cannot pretend to be the moral watch dog of the world, yet practice such such draconian laws and expect the rest of the world to take them seriously.

No person, organisation or military should be deemed to be above the law.

Nice one Cromley and well done to the US Judicial review panel.

Anonymous said...

"I'm not saying that President Bush used this power in an aritrary way like the examples is used above. What is terribly frightening is that he could have. He could have thrown Scott McClellan, Cindy Sheehan, Nancy Pelosi, Al Franken, or anyone else in prison with no judicial review."

He most assuredly does and HAS used his powers in arbitrary ways. I'm just sorry the Supreme Court waited until the jerk is nearly out of office before ruling on this. He's had 8 years of Bush tyranny to exploit people.

I'm sure some of the people detained at Guantanamo are truly terrorists and deserve their detention, but it's come to light that many more are NOT and now they are stuck since they are no longer wanted back in their own country and worse, are now totally anti-American and who could blame them?