"Justice" Scalia Mocks Habeas Corpus

Yesterday, the Supreme Court ruled 5-4, in a stinging rebuke to the Bush administration, that the administration had no right under the US Constitution to enforce a part of the Military Commissions Act of 2006. You may recall that this was the law hastily created to give the president wide-ranging powers to deny detainees in Guantanamo Bay the ability to confront their accusers and rebut the evidence being used to keep them there or to administer "justice" in their cases. The MCA contained a provision that purported to suspend the writ of habeas corpus -- the means by which any accused person can challenge his arrest or the evidence used against him -- against the detainees, even though the Constitution expressly states that suspension is only permitted in cases of "rebellion or invasion."

Now, the detainees have full rights to challenge their detention is US federal courts, rather than the kangaroo-style military tribunals that Bush claimed would be fair in administering justice. These detainees had no access to counsel at hearings, were subjected to government evidence that was presumed to be valid, and were prevented from challenging (and is some cases even knowing) the evidence against them. The Court held that these tribunals "fell well short" of the standards that would mandate suspension of habeas.

In the majority opinion written by Justice Anthony Kennedy, the Court made clear (and revitalized) some of the most important principles of our system of government which the Bush administration has literally trampled upon since 9/11. You see, Bush and his ilk believe in the concept of a "unitary executive," which holds that the President has unique powers to run the country that circumvent and transcend the checks and balances that make the way we do things so ideal. Hence he attaches signing statements to bills he signs but doesn't like, basically stating for the record that he reserves the option to ignore the law. Hence he stands behind radical legal opinions of lawyers like John Woo who gave Bush the legal clearance to torture detainees to extract information, or to spy on American citizens without a warrant, or to transfer detainees to foreign countries where there is a likelihood that they will be tortured, or to classify the president's knowledge about something even if that thing has already been declassified. The Court's decision yesterday undoes all of that and requires the government to justify its actions, and gives back the basic human right of any person to confront and challenge those who accuse him.

Now, Scalia, in his dissent, entirely undoes his argument within the first two pages. He writes:

America is at war with radical Islamists. ... The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make [that] war harder on us. It will almost certainly cause more Americans to be killed. ... At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.

Well, Mr. Justice Scalia, that is the price to defend our freedom. (Plus, if needed, would we not return an American soldier formerly held prisoner back into action?)

Although I detest war for its own sake, if we're going to fight one, fighting one to defend basic human rights like habeas corpus is infinitely preferable to fighting one to establish permanent bases on the ground that will secure the flow of cheap oil so that billionaire friends and cronies can reap record profits on the backs of working Americans. Remember that this is an objective that the Republican nominee wants to preserve.

As my beloved Code of Honor states (in part):

Never Engage in Battles With Weaker Opponents
Fight Only Honorable Battles
Defend Humanity
Be and Example to Children.

Another twist on the McSame angle, this time from Greenwald:

John McCain has identified Roberts and Alito as ideal justices of the type he would nominate, while Barack Obama has identified Stephen Breyer, David Souter and Ginsberg (all in the majority today). It's not hyperbole to say that, from Supreme Court appointments alone, our core constitutional protections could easily depend upon the outcome of the 2008 election.