There is an enormous gulf between the substance and tone of the majority opinion, with its rich appreciation of the liberties that the founders wrote into the Constitution, and the what-is-all-the-fuss-about dissent. It is sobering to think that habeas hangs by a single vote in the Supreme Court of the United States — a reminder that the composition of the court could depend on the outcome of this year’s presidential election. The ruling is a major victory for civil liberties — but a timely reminder of how fragile they are.Dan Froomkin today also has an enlightening juxtaposition of a key passage from the judgment against the thug Bush's comments yesterday:
In yesterday's landmark Supreme Court decision that President Bush cannot deny prisoners at Guantanamo Bay the right to challenge their detentions in federal court, there's a key passage about protecting people from despotism.What contemptible arrogance and ego that immediately rejects the considered opinion of the Supreme Court that has thoroughly indicted the premise of Gitmo. Eugene Robinson calls out this obsession with national security as a justification for the gutting of hundreds of years of legal protections:
The passage comes as Justice Anthony M. Kennedy is relating the history and origins of the great writ of habeas corpus. Kennedy quotes from Alexander Hamilton's Federalist No. 84, which in turn quotes English jurist William Blackstone: "[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone . . . are well worthy of recital: 'To bereave a man of life. . . or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.'"
And here, from a press availability with Italian Prime Minister Silvio Berlusconi yesterday, is Bush's response to the ruling: "[W]e'll abide by the Court's decision. That doesn't mean I have to agree with it. It's a deeply divided Court, and I strongly agree with those who dissented, and their dissent was based upon their serious concerns about U.S. national security.
"Congress and the administration worked very carefully on a piece of legislation that set the appropriate procedures in place as to how to deal with the detainees.
"And we'll study this opinion, and we'll do so with this in mind, to determine whether or not additional legislation might be appropriate, so that we can safely say, or truly say to the American people: We're doing everything we can to protect you."
it's still hard for me to believe that arbitrary arrest, indefinite detention and torture continue to be debated, as if there were pros and cons. The Supreme Court has now made clear that while justice and honor may be mere inconveniences for Bush, they remain essential components of our national identity.Now the challenge is to make the ruling effective in the face of continued tyranny from Bush.
"The nation will live to regret what the court has done today," Justice Antonin Scalia wrote in a dissent, warning that the ruling "will almost certainly cause more Americans to be killed."
Everyone hopes he's wrong, of course. But if the only thing that mattered were security, why would we bother to have an independent judiciary? Why would there be any constitutional or legal guarantees of due process for anyone?