Another Test for the US Supreme Court
Most of us have been concentrating on the abortion issue when it comes to assessing the effect John Roberts and Samuel Alito will have on the US Supreme Court. It's natural: both are conservative Catholics and both have gotten an imprimatur from the Fundigelicals. However, the Court will also be hearing a key case on Guantanamo Bay and the issue of habeas corpus (the right of a defendant to challenge his detention by the legal authorities). From yesterday's NY Times:
Since the Republican majority has decided to allow President Bush to usurp Congress's role in matters of national security, the battle to save the constitutional balance of powers moves to the judiciary. A critical test of judicial independence will come this month, when the Supreme Court hears arguments in a case that has become a focus of Mr. Bush's imperial vision of the presidency.
Salim Ahmed Hamdan, a Yemeni national accused of having been a bodyguard and driver for Osama bin Laden in Afghanistan, has been detained since 2002 in Guantánamo Bay. He filed suit to challenge the legitimacy of the military commission that upheld his designation as an "unlawful enemy combatant" — a term Mr. Bush invented after 9/11 to deny the protections of the Geneva Conventions, international statutes or United States law to certain prisoners.
Mr. Hamdan argued, rightly, that the commissions are not legitimate because prisoners are routinely barred from seeing evidence, much less confronting their accusers or having access to real legal representation. But his case has now become a much larger battle over the principle of habeas corpus, which is embedded in the Constitution and says that a prisoner cannot be denied the right to challenge his detention. Mr. Bush's decision after 9/11 that he had the power to put prisoners beyond the reach of the law at his choosing was the first attempt to suspend habeas corpus on American territory since the Civil War.
The Supreme Court two years ago emphatically rejected the president's claim that its jurisdiction did not extend to Guantánamo. Seeking to reverse that ruling, the White House in December helped push through a special amendment as part of the deal that also saw Mr. Bush sign a watered-down ban on torture of military detainees. The amendment, sponsored by Senator Lindsey Graham, a Republican, and Senator Carl Levin, a Democrat, stripped Guantánamo detainees of the normal rights of judicial review. It also designated a single appellate court to conduct a limited review of decisions by the military commissions, and left "enemy combatants" held without a trial in a seemingly inescapable legal black hole.
As soon as Mr. Bush signed this law, he declared that the administration was going to apply it to all pending cases, about 160 or so, and the solicitor general told the Supreme Court it no longer had a right to hear Hamdan v. Rumsfeld. This is court-stripping — the attempt by another branch of government to prevent the court from deciding a particular issue....
[T]he Constitution itself requires an "invasion" or a "rebellion" as a prerequisite for suspension of habeas corpus. It's hardly likely that the founding fathers intended to give Congress the right to eliminate judicial review during an ongoing international struggle against terrorism that may well go on for generations. [Emphasis added]
The right to challenge detention is central to our legal system and to our Constitution. It cannot be wiped away by a unitary imperialism or by a collaborating Congress. The Court is our last defense to this perversion of civil liberties. If in fact Mr. Roberts and Mr. Alito are strict constructionist and are opposed to legislation from the bench, they will slap down this attempt to remove a key section of our rights under the Constitution.
I hope they're up to it.
Since the Republican majority has decided to allow President Bush to usurp Congress's role in matters of national security, the battle to save the constitutional balance of powers moves to the judiciary. A critical test of judicial independence will come this month, when the Supreme Court hears arguments in a case that has become a focus of Mr. Bush's imperial vision of the presidency.
Salim Ahmed Hamdan, a Yemeni national accused of having been a bodyguard and driver for Osama bin Laden in Afghanistan, has been detained since 2002 in Guantánamo Bay. He filed suit to challenge the legitimacy of the military commission that upheld his designation as an "unlawful enemy combatant" — a term Mr. Bush invented after 9/11 to deny the protections of the Geneva Conventions, international statutes or United States law to certain prisoners.
Mr. Hamdan argued, rightly, that the commissions are not legitimate because prisoners are routinely barred from seeing evidence, much less confronting their accusers or having access to real legal representation. But his case has now become a much larger battle over the principle of habeas corpus, which is embedded in the Constitution and says that a prisoner cannot be denied the right to challenge his detention. Mr. Bush's decision after 9/11 that he had the power to put prisoners beyond the reach of the law at his choosing was the first attempt to suspend habeas corpus on American territory since the Civil War.
The Supreme Court two years ago emphatically rejected the president's claim that its jurisdiction did not extend to Guantánamo. Seeking to reverse that ruling, the White House in December helped push through a special amendment as part of the deal that also saw Mr. Bush sign a watered-down ban on torture of military detainees. The amendment, sponsored by Senator Lindsey Graham, a Republican, and Senator Carl Levin, a Democrat, stripped Guantánamo detainees of the normal rights of judicial review. It also designated a single appellate court to conduct a limited review of decisions by the military commissions, and left "enemy combatants" held without a trial in a seemingly inescapable legal black hole.
As soon as Mr. Bush signed this law, he declared that the administration was going to apply it to all pending cases, about 160 or so, and the solicitor general told the Supreme Court it no longer had a right to hear Hamdan v. Rumsfeld. This is court-stripping — the attempt by another branch of government to prevent the court from deciding a particular issue....
[T]he Constitution itself requires an "invasion" or a "rebellion" as a prerequisite for suspension of habeas corpus. It's hardly likely that the founding fathers intended to give Congress the right to eliminate judicial review during an ongoing international struggle against terrorism that may well go on for generations. [Emphasis added]
The right to challenge detention is central to our legal system and to our Constitution. It cannot be wiped away by a unitary imperialism or by a collaborating Congress. The Court is our last defense to this perversion of civil liberties. If in fact Mr. Roberts and Mr. Alito are strict constructionist and are opposed to legislation from the bench, they will slap down this attempt to remove a key section of our rights under the Constitution.
I hope they're up to it.
posted by Diane at 3:54 AM
0 Comments:
Post a Comment
<< Home