Habeas Corpus and Enemy Combatants

1. What will the SC do re: Jose Padilla:

To some extent, this is a question for court-watchers and other prognosticators. My tea leaf reading is limited. I suspect the following is an easy sell: Scalia and Thomas will, as always, blindly support authority. Both will do the easy intellectual "chore" of finding historical support for submission to the desires of the executive, reaching to England where our history is more progressive. Rehnquist always supports the power of the state. On the other side, Souter, Ginsburg, Breyer, and Stevens will oppose the Bush adminstration. That leaves, O'Connor, and Kennedy -- hardly the two individuals to whom any sane person would entrust his or her liberty. Both seem old and frightened individuals who will vote out of fear to support Bush.

What the Bush administration seeks to do is, in short, abolish the writ of habeas corpus, the "great writ" as Blackstone called it. The writ of habeas corpus is a procedure to force the executive to justify one's imprisonment. It is rightly called the foundation of English and American liberty. Accordingly, the constitution says it cannot be suspended except in an emergency, and is then silent on what that means. The writ has been suspended once, I believe, during the civil war, and then by executive order. Unlike a civil war, or any declared war, Bush's "war on terrorism" is, like the "war on poverty" is an unending metaphor rather than anything defined in time. Thus, to grant that we are "at war" now is to say that we are permanently at war. Emergency becomes permanent reality.

Jose Padilla is a US citizen who was seized on US soil. The Bush administration claims that it may hold him indefinitely, incommunicado, without making a showing to anyone. If the SC upholds this, there will be no barrier left to a police state. It is that serious, and that sad. The SC precedent upholding unlimited secret detention will have to be overturned at some future date. Perhaps when one of them is arrested and held indefinitely for no reason, then the others will defend the law. Unless it is too late.

2. What the SC will do re: Guantanamo

This is actually the more interesting case because it is not as black and white (or as gruesome) as the outcome in Padilla's case. This has to do with the status of Guantanamo. Can the US government create a permanent place where the US constitution does not apply? Asked this way, the answer is clear: obviously not. The constitution doesn't either "apply" or "not apply." It's not a traffic regulation. The constitution is what creates the government; the government always operates under the constitution, and has no power outside of it. Therefore, the constitution "applies" to Guantanamo. Bush is holding them there now under no authority but his own say-so, and they are accorded no rights whatsoever. The Bush position would support summary execution. The Bush position is that there is NO law at Guantanamo, only the power and judgment of the military. It is astonishing - shocking -that this is not laughed at. 600 human beings have been locked up and told they have no rights at all. This is America? The Bush response: "technically, no" is cold comfort.

Once we move away from the lawless Bush party to those who value the rule of law, we find the answer. The detainees there may be held as POWs, under the Geneva convention which, because it is a treaty to which we are a signatory, is the "supreme law of the land." Otherwise, there is no authority.
I think the SC is likely to rule that the constitution applies to Guantanamo, but that it permits holding of them as POWs only.

3. The "inherent powers" issue.

In the 1920s, the SC confronted a treaty with Canada regarding migratory birds. The court held that this had nothing to do with interstate commerce and therefore the US government had no business regulating it. However, it said, the states had no authority to enter treaties. Rather than leave a lacuna, the SC said that the federal government could negotiate such a treaty as part of the "inherent powers" of a sovereign nation. This doctrine has not been stretched much beyond this initial setting, but one can see both its appeal and danger. The appeal is that it lets us get beyond technical 1790s limits to do sensible things like bird treaties. The danger is, of course, that "inherent powers" means extra powers. This is, I believe, a doctrine that views the "sovereignty" of the Federal government as if it were a Royal sovereign. The difference, of course, is that under our system the people are sovereign, and THEY have the inherent powers, not the government.

4. Bottom line: Rule of Law

The real question is whether we respect the Rule of Law, or whether we just trust our rulers. The sad part is that the Bush administration has no respect for the Rule of Law. Bush and Ashcroft seem to think that they're following Jesus. Cheney just subscribes to Machiavellian doctrines of the exercise of power. To "fight terrorism" anything is justifiable to them. Unfortunately,terrorism, unlike specific terrorists, is an idea that one can never defeat. The prosecutor in "A man for all seasons" of Thomas More states boldly that he would cut down every law to get at the devil. Thomas More, in response, asks "and when you have cut down every law, where will you hide when the devil turns on you?"