The privilege of 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, clause 2
Last year, I said that the Military Commissions Act violated the U.S. Constitution. This morning, 5 United States Supreme Court Justices agreed with me. Justice Anthony Kennedy, the swing vote, wrote this:
The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a partBOUMEDIENE v. BUSH, 553 U. S. ____ (2008) (Slip Op., at 70). [134 page PDF]
of that law.
Showing that watches Faux News and listens to talk radio, Justice Scalia wrote in his dissent that
America is at war with radical Islamists. [citing all terrorist attacks against Americans from Lebanon in 1983 until, of course, September 11,2001] ... [Terrorism by radical Islamists] has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.Scalia, J., dissenting (Slip Op. at 2).
The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the
The threat to America posed by these terrorists, I would counter, while serious, is nothing compared to the threats posed by the Soviet Union from 1945-1989. Literally thousands of nuclear missiles were pointed at us and could kill hundreds of millions within minutes of their launching. If left unchecked, the Axis powers during World War II could have invaded America. Many of those in GitMo are horrible criminals, but others are there simply because someone in Afghanistan or Iraq offered them up to the Americans get the reward money. And now, thanks to the Administration's attempts to keep us safer, they have turned these innocent individuals against America and hardened the hearts of many in the Arab world. In short, they have made us less safe.
No president is above the constitution, even if the Congress acquiesces out of fear. No one man or woman in our system of government to label a person an "enemy combatant," ship them off to a U.S. territory, and throw away the key. The Great Writ, which has been part of our law since before the founding, is a necessary tool to ensure that injustices can not fester forever.
Today is a truly great day for our Judiciary, our Constitution, and our Republic. "God Save the United States and this Honorable Court!"