Habeas Corpus

Normally I focus on green issues, but I want to post this morning about something equally important. 

America's resilience shone through the important decision of the Supreme Court yesterday to restore the right of habeas corpus petitions to Guantanamo detaineees.  In one more sign that the long, dark night of the Bush era is coming to an end, the Court rejected the Administration's suspension of civil liberties for detainees and its legal theory that because Guantanamo lies ninety miles off the coast of Florida, it is exempt from US law.  In an opinion likely to be ready by many law students in future course on Constitutional Law, Justice Kennedy laid out strict conditions for invoking the suspension of habeas corpus clause in the Constitution--namely that Congress must find that rebellion or foreign invasion is actually underway--a line in the Constitution that the Administration and Congress had chosen to gloss over.

Why care about habeas corpus?  The Latin words may sound unfamiliar to the Ipod-acclimated ear, but, in essence, they mean that people arrested have the right to a trial.  Countries that don't have what Britsh jurists dubbed the "Great Writ" can arrest someone and that's the end of it.  The person disappears.  Without the right of court review there is absolutely nothing to prevent Soviet-style "disappearances" of people down the memory hole beyond the reach of relatives, lawyers or a court.  Thus while on one level, the writ is just a piece of paper that a judge issues asking that a prisoner be brought before him for a hearing, practically speaking it is the guaranty of rule of law, freedom and the separation of powers.  For this reason, the right of habeas corpus is the only right mentioned in the Constitution itself--as opposed to the Bill of Rights--which was adopted later.  The Framers grasped its importance. 

It should be deeply gratifying to people that cherish freedom that five of the justices grasp it as well.  Justice Kennedy peering deeply into the history of the writ in his opinion, wrote that the political branches "must not have the power to switch the constitution on and off at will." 

Yet in equal measure as his opinion was heartening, the minority opinion was distrubing.  Judge Roberts, in describing habeas corpus as just a "procedural" matter argued this is all much do about nothing.

We should be mindful as today's New York Times notes, that the Court's margin was only 5 to 4.