The Supreme Court and the Constitution

Finley Peter Dunne's Mr. Dooley famously noted that "No matter whether the country follows the flag or not, the Supreme Court follows the election returns." Well, Mr. Dooley never lived long enough to witness the Florida 2000 election. Furthermore, the public hasn't spoken yet about the detention of the prisoners called "unlawful enemy combatants" at Guantanamo Bay, Cuba. We may hear from them in the next presidential election, though.

What's the issue here? The recent Supreme Court decision affirming that the Guantanamo detainees are entitled to petition for a writ of habeas corpus in civilian courts. Personally I can't even figure out why this is an uncertain point. The Constitution is quite specific about habeas corpus, even mentioning it before the Bill of Rights was added:

the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.

Article I Section 9

There's no rebellion. There hasn't been one, AFAIK, since the Green Corn Rebellion in 1917. There's no invasion either.

SO WTF? How do almost half of the SCOTUS justices justify suspending habeas corpus?

Well, former Attorney General Gonzales said it's a privilege, not a right. OK, that word "privilege" is the word used in the Constitution, but to distinguish privileges from rights is anachronistic. They didn't make that distinction in 1787, and we shouldn't read it back into the Constitution they wrote then. And AAMOF, the SCOTUS doesn't fall for that line of argument.

The dissenting court judges take a different tack. Roberts said it should be left to the legislature and executive. So why do we need courts at all? Scalia said the decision "breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad" as if either aliens have no rights or Guantanamo isn't under US control. Either position is risible. He also says that the ruling places undue burdens on the Commander in Chief, and that it will cause the death of more Americans.

In the decision, Justice Kennedy said:

Our opinion does not undermine the executive's powers as commander in chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the judicial branch. Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the executive to imprison a person.

I don't say the detainees should necessarily go free, but I do say that if there is a reason to hold them it should be produced in public so that we can all see it. Justice must not only be done, it must be seen to be done. I'm not saying that these people are necessarily innocent, much less that they are good guys. I am saying that they are entitled to a day in court. Civilian courts are not supposed to be suspended unless they are unable to operate.

If the Commonwealth of Virginia could give Nat Turner his day in court, with a lawyer, the United States can give the Guantanamo detainees their days in court, too. The slavocrats of southeast Virginia were surrounded and outnumbered by slaves who wanted to kill them. They had far more reason than we do to fear for their safety. If they didn't abandon the Constitution when it was only 50 years old, we have no reason to abandon it when it is over 200 years old.

Remember, this is not the Supreme Court that appointed Bush, it is that court amended by several justices whom Bush has appointed. If even this court rejects his arguments, I don't think they should be taken very seriously.