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Dead Constitution See other Dead Constitution Articles Title: Justice Isn't Justice if it Applies Only to your Friends On Thursday June 12, the Supreme Court restored habeas corpus to the accused persons detained by President Bush at Guantanamo. In doing so it set American laws again on the track of constitutional self-respect. But it also opened the grounds for a debate which is sure to be long and fierce, in which the American opponents of liberty, eager for the domestic regime that in 2002 seemed almost in their grasp, will spare no reproach against the Court and will speak openly of the "lack of realism" of the U.S. Constitution. Two previous decisions, and two bad remedies by a servile Republican Congress and its Democratic enablers, led to Thursday's decision. The Supreme Court in Rasul v. Bush, in June 2004, recognized that the Guantanamo prisoners had statutory habeas rights. The response by Congress was the Detainee Treatment Act of 2005, which specified the harsher rules to which they were subject. In Hamdan v. Rumsfeld, in June 2006, the Court held that Guantanamo trials by military commissions were in violation of both the Uniform Code of Military Justice and the Geneva Conventions. Congress then offered up, and the president signed into law in October 2006, the Military Commissions Act, which gave legislative sanction to the Guantanamo commissions and stripped the prisoners of habeas corpus. Now, in Boumediene v. Bush, the Court found the ad hoc Congressional remedy of the Military Commissions Act to be unconstitutional. Many who nominally voted for the bill had said early on that they knew it to be unconstitutional. Chief among these was Senator Arlen Specter, a lawmaker who has spoken as a dissenter but served as an accomplice to President Bush. The New York Times today backed the Court's decision, and so will some other papers; but it is well known the vice president doesn't take no for an answer. He and his lawyers will be back again to lock the prison doors on those who once couldn't consult lawyers, who still can't see much of the evidence against them, and who in many cases were never charged with a crime. Yet Boumediene v. Bush has made the work of sophistry more tasking to the gulag apologists for Guantanamo, that prison-without-a-country where they threw away the rules and thought up reasons afterward. Thursday's decision, in substance, overturned the legislative assumption that the Military Commissions Act could deny habeas corpus actions pending at the time of the law's enactment. And by the reasoning of Justice Kennedy's majority opinion, the Court has now placed Guantanamo under the eyes of federal courts whose burden is to act within the Constitution. Justice Kennedy quoted the statement by Hamilton in Federalist 84, that, along with crimes created after the fact, "arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny." He followed Hamilton in quoting Blackstone on the confiscation of property without accusation or trial, and Blackstone on an offense he considered worse: "confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten." Such arbitrary imprisonments without explanation and without appeal, Blackstone said, are a still "more dangerous engine of arbitrary government" than confiscations. The most appropriate remedy, for both Hamilton and Blackstone, was the habeas corpus act. Justice Souter, in concurrence, ended his opinion with these memorable and somber words: "After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today's decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation." For supporters of the idea of endless war and the aggrandizement of the national security state, Guantanamo has always been a necessary monument and a salutary menace. It is the symbol of the war party and they guard it with a solicitous care that borders on pride of possession. But what explains the conditional defense of Guantanamo by those, like the Secretary of Defense, who affect to deplore its necessity yet say that it cannot be closed? Part of the answer appeared in a story by William Glaberson in the New York Times on Friday June 13. "Some 80 detainees," writes Glaberson, "cannot be charged with war crimes, perhaps because the evidence is not strong enough, but are nonetheless considered too dangerous to release." Glaberson adds (with too much credulity and too little explanation) that there are supporters of the prison who believe the Court's decision gives "unrealistic protections for men captured during war." Yet some of those men were innocent. Many, in the first big sweep in Afghanistan, were turned in by neighbors because they had bounties on their heads. Others have names that sound like the names of somebody we might have been searching for, but, to be sure, you had to know the language. We were not sure and six years later they are at Guantanamo. Justice Scalia's dissenting opinion leads with an op-ed formulation: "America is at war with radical Islamists." In plenty of mainstream outlets, you would find columnists to agree, but what exactly is the authority of the statement, coming, as it does, from a justice of the Supreme Court? The Scalia opinion begins with a presidential opinion that has no legal standing. The U.S. is, in fact, at war in Iraq, where our enemies are various, and in Afghanistan, where our enemies are the Taliban lately enlarged and invigorated by allies created by the fury against American acts of destruction. Justice Scalia could have pleased as many of the audience whom he wished to please had he said, "America is at war with Islamo-Fascists." Or he might have said: fanatical Muslims. Or have called it a "clash of civilizations." He could, with as much propriety, have said we are at war with Terror. That would have included all the present enemies at a sweep, along with all imaginable future enemies. The harder you fall for names that are vague and dark, the faster you can lower the standard of justice. His astonishing opinion goes on to assert that the Court's decision "will almost certainly cause more Americans to be killed." And it concludes with a prophecy that is half a prayer: "The Nation will live to regret what the Court has done today." Notice the depth of the non-moral and non-judicial presumption of these statements. The Court, Justice Scalia is saying, exists to serve the pragmatic hopes and fears of the nation. It does not exist to mark the character and the limits of the law, which define the identity of the nation. If that is right, there is nothing wrong in his giving recent figures of American deaths in Iraq and Afghanistan as reasons why the Court's decision is mistaken. "Last week, 13 of our countrymen in arms were killed." And yet this was a patent play to the gallery. It comes to the crass debater's topic of "giving aid and comfort to the enemy," a tactic raised to the level of judicial demagogy. Here is a fair wager. The Americans who have died in Afghanistan and Iraq did not think they were fighting to defend an authoritarian state with no limit on the forces operating the law. Yet Justice Scalia is troubled that Thursday's decision in favor of constitutional liberty will set "military commanders" the "impossible task of proving to a civilian court...that evidence supports the confinement of each and every enemy prisoner." He writes as if the concept of innocence were a luxury reserved for pleasant people in happy times. That the prisoners are rightly identified, that they are indeed correctly described as enemies: this is the very thing to be proved. And you cannot prove it without evidence. And the evidence isn't good if only the accuser can see it, or if it was altered in transit, or if it was extracted under torture. Those, away from the battles, who have made the largest personal sacrifice for liberty today, are the army lawyers for Guantanamo inmates, and the civilian lawyers who have tried to assure that these cases would not disappear. Lt. Col. Stephen Abraham, in particular, informed the public of the corruption of the legal process after he saw summaries of evidence against detainees, which had been performed inside Guantanamo by unqualified people--indeed, people who are likely to have been chosen for their lack of qualification. Abraham found the same pattern in the vetting of the information supplied by government agencies. He was a witness--as others have been, though few as yet have testified--to one of the signal accomplishments of the Cheney-Bush administration, the gutting of the civil service and the foreign service and the purge of government agencies. "I suggest," wrote Felix Frankfurter in a letter to a patriot a good deal like Justice Scalia, "that you consider what law really means. Anybody can give law to his friends. It's the essence of law to give it to our enemies." Frankfurter wrote those words at a time of national panic around the Sacco and Vanzetti trial; but they reveal a principle he kept in mind when he served on the Supreme Court, from 1939 to 1962. The law, he summed up, is "all we have standing between us and the tyranny of mere will and the cruelty of unbridled, undisciplined feeling." It remains the same unbridled feeling whatever enemy it designates and whatever Heimat or homeland it clutches as its present excuse.
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