Who's Got the Body?

I've been watching the Hamdan case with interest because it epitomizes so much of what is wrong with this regime. Illegal detention of prisoners of war under conditions that clearly violate international human rights law, including the Geneva Convention; the use of torture to get meaningless and unreliable information; the refusal to let the International Red Cross view the prisoners and to interview them; the refusal to allow the prisoners themselves to challenge their detention in the US courts: those are the most obvious of the abuses. There are others which are less obvious but perhaps more devastating to the American ideal of civil liberty.

One of those elements is the suspension of the right to habeas corpus: the right to challenge governmental detention. This important right can be suspended only under the most dire of emergencies, and then, only while the emergency lasts. Two hundred years of American jurisprudence has protected this right. As a result, our history has little in the way of 'disappeared citizens.' Now the regime wants to suspend that right, and after convincing Congress to give up its constitutional powers, it seeks to wrest those constitutional powers from the courts, and it is using this issue as a wedge to do so. Fortunately, at least five members of the current Supreme Court are not as anxious to cave as Congress was. From the NY Times:

As the justices of the Supreme Court took their seats Tuesday morning to hear Osama bin Laden's former driver challenge the Bush administration's plan to try him before a military commission, one question — perhaps the most important one — was how protective the justices would be of their jurisdiction to decide the case.

The answer emerged gradually, but by the end of the tightly packed 90-minute argument, it was fairly clear: highly protective.

At least five justices — Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, David H. Souter and John Paul Stevens — appeared ready to reject the administration's argument that the Detainee Treatment Act, passed and signed into law after the court accepted the case in November, had stripped the court of jurisdiction.

...Suspending habeas corpus is an action, limited by the Constitution to "cases of rebellion or invasion," that Congress has taken only four times in the country's history. Habeas corpus is the means by which prisoners can go to court to challenge the lawfulness of their confinement, and its suspension is historically regarded as a serious, if not drastic, step.

...Of the other members of the court, Justice Antonin Scalia appeared most supportive of the administration. He intervened several times to offer Mr. Clement a helping hand, something the solicitor general rarely needs but accepted gratefully. [Emphasis added]

At this point, it appears that the Supreme Court will retain jurisdiction over the issue, if only for this case, which was filed before the disasterous legislative action stripping the American courts of jurisdiction over Guantanamo Bay prisoners of war. Only eight justices will be deciding the issue. Chief Justice Roberts properly recused himself because he was part of the District Court of Appeals panel which heard the case earlier. Justice Scalia, who made his opinions on the issue known in a speech last week even before hearing the oral arguments, improperly refused to recuse himself.

Needless to say, it's going to be a rocky road to November.