What Happens Next
Yesterday was a pretty momentous day, especially for those of us who were watching our constitutional democracy swirl down the toilet bowl. For those few of you who were comatose yesterday and didn't hear, the US Supreme Court decided that the US government cannot detain people for years without giving them a chance to challenge that detention. Habeas corpus is a right that must be extended to anybody held by the government, including the detainees at Guantanamo Bay.
An editorial in today's NY Times summarizes quite nicely just what that decision means:
For years, with the help of compliant Republicans and frightened Democrats in Congress, President Bush has denied the protections of justice, democracy and plain human decency to the hundreds of men that he decided to label “unlawful enemy combatants” and throw into never-ending detention.
Twice the Supreme Court swatted back his imperial overreaching, and twice Congress helped Mr. Bush try to open a gaping loophole in the Constitution. On Thursday, the court turned back the most recent effort to subvert justice with a stirring defense of habeas corpus, the right of anyone being held by the government to challenge his confinement before a judge.
The Bush administration has already responded with its typical bravado, as noted in this AP article:
Speaking at a Group of Eight meeting of justice and home affairs ministers in Tokyo, [Attorney General Michael] Mukasey said, "I'm disappointed with the decision, in so far as I understand that it will result in hundreds of actions challenging the detention of enemy combatants to be moved to federal district court."
He added: "I think it bears emphasis that the court's decision does not concern military commission trials, which will continue to proceed. Instead it addresses the procedures that the Congress and the president put in place to permit enemy combatants to challenge their detention."
He said the Justice Department would comply with the ruling while studying the decision and "whether any legislation or any other action may be appropriate." [Emphasis added]
Any other action? And just what would that be? A Unitary Executive decree? The dissolution of the US Supreme court, a la Pakistani President Musharraf? Mr. Mukasey should have stopped while he was ahead in that interview, because to a great extent he was right. The only part of the abomination known as the Military Commissions Act addressed by this decision was the denial of habeas corpus to the detainees. The show trials were not before the Court, and presumably will continue if the defendants do not immediately file for a habeas corpus hearing with the Federal District Court.
Just what this means to the detainees in practical terms is set out nicely by H. Candace Gorman, a lawyer for several of the them, at her blog. While Ms. Gorman has a habeas petition filed with the Supreme Court, she suspects that it will not order her client's outright release but will send the matter back to the Federal District Court for the appropriate hearing, which brings us back to that NY Times editorial linked above.
There is an enormous gulf between the substance and tone of the majority opinion, with its rich appreciation of the liberties that the founders wrote into the Constitution, and the what-is-all-the-fuss-about dissent. It is sobering to think that habeas hangs by a single vote in the Supreme Court of the United States — a reminder that the composition of the court could depend on the outcome of this year’s presidential election. The ruling is a major victory for civil liberties — but a timely reminder of how fragile they are. [Emphasis added]
The composition of the Supreme Court and the federal courts in general is at stake, and the November elections will be crucial, and not just for the president's slot. We also need a Congress which will not tolerate the kind of appointees the 109th and 110th Congresses let slip through while "frightened Democrats" kept their powder dry.
We have our work cut out for us.
An editorial in today's NY Times summarizes quite nicely just what that decision means:
For years, with the help of compliant Republicans and frightened Democrats in Congress, President Bush has denied the protections of justice, democracy and plain human decency to the hundreds of men that he decided to label “unlawful enemy combatants” and throw into never-ending detention.
Twice the Supreme Court swatted back his imperial overreaching, and twice Congress helped Mr. Bush try to open a gaping loophole in the Constitution. On Thursday, the court turned back the most recent effort to subvert justice with a stirring defense of habeas corpus, the right of anyone being held by the government to challenge his confinement before a judge.
The Bush administration has already responded with its typical bravado, as noted in this AP article:
Speaking at a Group of Eight meeting of justice and home affairs ministers in Tokyo, [Attorney General Michael] Mukasey said, "I'm disappointed with the decision, in so far as I understand that it will result in hundreds of actions challenging the detention of enemy combatants to be moved to federal district court."
He added: "I think it bears emphasis that the court's decision does not concern military commission trials, which will continue to proceed. Instead it addresses the procedures that the Congress and the president put in place to permit enemy combatants to challenge their detention."
He said the Justice Department would comply with the ruling while studying the decision and "whether any legislation or any other action may be appropriate." [Emphasis added]
Any other action? And just what would that be? A Unitary Executive decree? The dissolution of the US Supreme court, a la Pakistani President Musharraf? Mr. Mukasey should have stopped while he was ahead in that interview, because to a great extent he was right. The only part of the abomination known as the Military Commissions Act addressed by this decision was the denial of habeas corpus to the detainees. The show trials were not before the Court, and presumably will continue if the defendants do not immediately file for a habeas corpus hearing with the Federal District Court.
Just what this means to the detainees in practical terms is set out nicely by H. Candace Gorman, a lawyer for several of the them, at her blog. While Ms. Gorman has a habeas petition filed with the Supreme Court, she suspects that it will not order her client's outright release but will send the matter back to the Federal District Court for the appropriate hearing, which brings us back to that NY Times editorial linked above.
There is an enormous gulf between the substance and tone of the majority opinion, with its rich appreciation of the liberties that the founders wrote into the Constitution, and the what-is-all-the-fuss-about dissent. It is sobering to think that habeas hangs by a single vote in the Supreme Court of the United States — a reminder that the composition of the court could depend on the outcome of this year’s presidential election. The ruling is a major victory for civil liberties — but a timely reminder of how fragile they are. [Emphasis added]
The composition of the Supreme Court and the federal courts in general is at stake, and the November elections will be crucial, and not just for the president's slot. We also need a Congress which will not tolerate the kind of appointees the 109th and 110th Congresses let slip through while "frightened Democrats" kept their powder dry.
We have our work cut out for us.
Labels: Election 2008, Guantanamo Bay, Supreme Court
posted by Diane at 4:15 AM
1 Comments:
As a friend of mine pointed out "I hope that people will take careful notice of the court's words. A fragile line was drawn between freedom and tyranny."
The reality that we are one vote away from a Scalia kind of America is sickening to say the least.
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