Celebrating the Fathers of the Constitution

By Carol Gee

The Thomas Jefferson Memorial at twilight illustrates today's post honoring one of the fathers of the U.S. Constitution.

Last week the United States Constitution won out over a determined Unitary Executive, our current president (OCP). The Supreme Court, in 5-4 decision, ruled in effect that "habeas corpus" was a kind of bedrock principle to which the United States of America must adhere except in extremely narrow circumstances.

The habeas corpus connection -- Benjamin Wittes, an expert (see *reference below) on the detainee situation, reminds us of the limits of the ruling, saying that the ruling does not say how that is to be applied in Guantanamo. It was another rebuke for our Unitary Executive, according to the New York Times. Justice Kennedy's decision only alluded to historical references including the Magna Carta; web2announcer reminded us that habeas corpus is 793 years old today.

The decision reverberated around the world.We have disappointed so many countries who looked up to us in the past as the beacon of freedom and human rights. Indi.ca, a Sri Lankan born in Canada, had this interesting take on the SCOTUS news (illustrated by a photo of the Magna Carta):

Terrorism works in that it scares nations into abandoning their values. Mature nations will resist this fear and insist on being themselves. Al Qaeda hasn’t actually killed many people (the LTTE has), but all these terrorist groups have - like viruses - hijacked their host nation’s very DNA - provoking an immune response out of proportion to the threat. Bush and Cheney wove Al Qaeda terror so deeply into American political consciousness that abandoning even obvious parts of the Constitution - like habeas corpus - became OK. Now, as that dark era of torture and incompetence ends, the Supreme Court has ruled that habeas corpus cannot in fact be suspended. That is, American detainees in Guantanamo or anywhere do have the right to a trial. What’s odd is that the dissenting opinions for Scalia and all take an ideological bent on what is really a simple legal issue. It’s like the response to “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it” is “Look over there, terrorism!”

George W. Bush, The Unitary Executive, was in Rome, Italy at the time. The Voice of America reported that OCP spoke out against the decision. Mark my words, OCP is this day trying to figure a way around it. To quote:

While the president was meeting with Italian leaders, the U.S. Supreme Court handed down its latest ruling on Guantanamo.

The president said he disagrees. "We will abide by the court's decision. That doesn't mean I have to agree with it."

Speaking at a joint news conference with Prime Minister Berlusconi, Mr. Bush said the White House will study the narrow 5-4 court opinion to see if new legislation is needed.

"It was a deeply divided court. And I strongly agree with those who dissented," he said.

Immediately we civil libertarians thought about what the next president could do to the Supreme Court. An Australian blog, not too much, highlighted the ruling as "Justice 5; Brutality 4." The writer lamented that Australia's constitution is not as strong as ours and concluded with the reported reactions of our two presidential candidates:

. . . Australia's liberties are even more fragile, and largely unprotected by our constitution. We are endangered when, as did John Howard, our government decides to follow in the footsteps of a United States commanded by a imperialist fool. Australia's Anti-Terrorism Act 2005 places limits our habeas corpus rights, for example.

Obama issued a statement calling the decision "a rejection of the Bush administration's attempt to create a legal black hole at Guantánamo" that he said was "yet another failed policy supported by John McCain." "This is an important step," he said, "toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy." Obama voted against the Military Commissions Act "because its sloppiness would inevitably lead to the court, once again, rejecting the administration's extreme legal position."

McCain was one of among the chief architects of the Military Commissions Act of 2006, which denied detainees a right to challenge their status in civilian courts. Although he pressed the administration to ensure legal protection against torture, he also argued that the status-review tribunals gave detainees adequate rights to challenge their detention, an argument that the court has rejected.

What happens at Guantanamo now is the next big question. The Washington Post says that those now set for trial may not have access to the evidence against them for their defense. What happens to detainees not set for trial is covered in a separate WaPo article. The Post looks in depth at how the decision might play out in the Washington, D.C. District Courts, that again have jurisdiction over the remaining detainees covered. The Post also looks at a third very pertinent question -- what Senator McCain is likely to do about it if he is elected president. We must not forget this crucial piece in the glow of this week's victory. Our Constitution's fathers are counting on us not to mess this up again.

*Reference: See C-S pan's broadcast of the American Constitution Society 2008 National Convention: Justice for Detainees Panel Discussion : "The American Constitution Society holds its 2008 National Convention in Washington, DC. In this panel titled, "Ensuring Access to Justice for Detainees in the 'War on Terror'," participants discuss criteria for who should be detained, their treatment, policies on interrogation and the future of Guantanamo detainees."

This day in history -- At the Constitutional Convention, on June 15, 1787: William Paterson proposed "New Jersey Plan" of limited changes to Articles of Confederation.

(Cross-posted at South by Southwest.)