Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to separation of powers. ...
Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not absolute and unlimited but are subject to such restrictions as are expressed in the Constitution. Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another.
-- BOUMEDIENE et. al. v. Bush et. al.
It is fitting that I write this post on Flag Day and in the midst of a time when many are graduating from schools that attempt to teach a bit of history and instill the values of citizenship. This is so because the Supreme Court, if only barely in one case, attempted to uphold what that flag stands for, adding some history and an example of (for good and ill) the institutions (imperfect they might be) it put in place. Much can be said, and others have said some of it. I will try to touch upon briefly some of the basic points involved.
A non-lawyers summary of the ruling, one honored by the resident lawyer can be found here. The link itself also directly deals with an interpretation to what the five justices, led by a former Republican lobbyist (yes, Kennedy is just that), did. The argument is that they were not compelled by the law as such, but by the facts. They had to deal with a "band of jokers" in some ways compared to the racism enablers faced by the Warren Court. To wit:
Let’s be honest — the Court today was basically saying “enough already.” The detention has dragged on for years (with years apparently to go), and it’s clear that another remand would add more unnecessary years to an already grotesquely long, embarrassing, and interminable process.
Let us note who exactly this "band of jokers" truly involves. It surely is not just limited by the Bush Administration or some lower court enablers. No no. The "et. al" is all too relevant here. As usual, Glenn Greenwald tends to cover the ground as good as any -- the Congress, including all too many Democrats (but not ultimately Obama, though no filibuster he), helped. This includes those like Sen. Specter, who declared the measure struck down as unconstitutional, but voted for it anyway. The act of a coward. A disgrace to those who declare to uphold the Constitution as much as the President of the United States.
A leader of the effort was Sen. McCain who now declares the ruling "one of the worst decisions in the history of this country" while simply lying. Yes, it is up there with Dred Scott and the Japanese Internment Cases! This is someone we are supposed to honor as a reasonable different sort, who unlike Obama has experience in leading this great nation? In what fashion? In enabling the suspension of a writ (snark) even older than him? The horror! After all this time, as Souter (again showing in a fashion, he honors the Brennan seat) notes his concurrence, all this proof of the need for a real check on executive power. This ranks as "one of the worst" decisions.
Yes, for those who support tyranny. Justice Kennedy is diminished, at times for cause, as a conservative enabler. Bush v. Gore will do that. Other times he is denounced as a blowhard. But, he suggests the dividing line among conservatives and statists. He might not want to carry out the true extent of the principles he declares, but Kennedy does declare them. The person who spoke of liberty and privacy in Lawrence and separation of powers in Clinton v. New York (and the gun case, Lopez) does believe in such things. So, he is the one to write such an opinion this month as well.
[At issue is as much a limitation of power, executive and congressional vs. judicial, as an immediate security of the rights of aliens. One summary of the point, among many posts worthy of reading on the rulings, can be found here.*]
The "band of jokers" writer, Publius, spoke of a Court that acted in a pragmatic way, which he clearly felt a bit uncomfortable supporting. Yes, it was compelled in this case, but on the law, CJ Roberts had a better argument in various respects. In comments, Katherine rejects this latter sentiment, also suggesting P. didn't quite do his homework. For instance, Roberts speaks of the grand rights offered to detainees (too much implicit assumption of guilt is some discussions btw), which the facts belie. More here.
Anyway, realization that true security of constitutional and legal commands might require addressing how they actually are being (or not being) enforced is part of the deal. It is mere empty formalism to robotically ignore such things. Likewise, the ruling (citing Brown v. Bd. of Education) suggests the limits of history, as much as originalists claim it binds us to follow a (usually) conservative path. The habeas precedents directly addressing a matter like this are a mixed bag with various ellipses. And, our situation is just not directly comparable to them in various ways. So, the lessons of history and the broad purposes of habeas must be used.* An honest and just path.
Meanwhile, our CJ, that of the United States, also joined Scalia's scare tactic dissent, declaring the majority risks our lives by honoring our institutions and the rights of many clearly innocent and mistreated to boot. Ditto Alito. Roberts did write the unanimous "companion" ruling of sorts, one that received much less press, but is still relatively important. The Court unanimously held that American citizens held in military custody in Iraq have habeas rights, though in the matter at hand, a foreign authority has the right to try them for acts committed on their soil. All the same:
By refusing the Bush Administration’s plea to block any habeas claims against U.S. military jailers in Iraq, the Court has dropped a hint that, in the new global village, habeas will follow the American flag overseas — possibly, everywhere except an active battlefield.
A core concern here, one the Court (three justices, again led by Souter, voiced some more clear authority for the courts when proof was more apparent ... though some argue it was here) held was largely a matter of the political branches (who assure us all is well here ... see rendition, huh?) was torture. We need not belittle the importance of that to honor the basic rule of law upheld here. After all, an opening in a more specific case is probably still open, the justices (again) using their discretion to underline certain limits on the political branches.
The rulings in effect suggest the Constitution, at least when dealing with minimum safeguards and limits of abuse of power, follows the flag. What better way to honor Flag Day than that?
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* In the words of the post:
"Consider three principles Justice Kennedy identifies out of the past:
1) habeas corpus rests on a theory of power, not a theory of liberty [p10],
2) it was “an adaptable remedy” [p50],
3) by which “liberty and security can be reconciled.” [p70]