Coyote Blog

I am a bit late to this, having just gotten back in town, but this is extraordinarily good news:

In a stunning blow to the Bush Administration in its
war-on-terrorism policies, the Supreme Court ruled Thursday that
foreign nationals held at Guantanamo Bay have a right to pursue habeas
challenges to their detention. The Court, dividing 5-4, ruled that
Congress had not validly taken away habeas rights.  If Congress wishes
to suspend habeas, it must do so only as the Constitution allows "” when
the country faces rebellion or invasion.

The Court stressed that it was not ruling that the detainees are
entitled to be released "” that is, entitled to have writs issued to end
their confinement. That issue, it said, is left to the District Court
judges who will be hearing the challenges. The Court also said that "we
do not address whether the President has authority to detain"
individuals during the war on terrorism, and hold them at the U.S.
Naval base in Cuba; that, too, it said, is to be considered first by
the District judges.

The Court also declared that detainees do not have to go through the
special civilian court review process that Congress created in 2005,
since that is not an adequate substitute for habeas rights.

During the17th and 18th century, as various western countries began to reign in autarchs, habeas corpus rights were high on their list of protections they demanded.  There is just too much potential for abuse to allow the Executive Branch to hold people (of any nationality) indefinitely without any kind of judicial due process.  I refuse to discuss the detentions in the context of their effectiveness in fighting terrorism just as I refuse to discuss immigration in terms of who will pick the lettuce.  If there are valid and legal reasons for these guys to be in detention, then the President must allow the judicial branch to confirm them or the legislative branch to amend them.

Update:  Powerline writes:

Justice Scalia characterizes the decision this way:

Today, for the first time in our Nation's history, the
Court confers a constitutional right to habeas corpus on alien enemies
detained abroad by our military forces in the course of an ongoing war.

It strikes me as odd to confer such a right, but then I haven't read Justice Kennedy's opinion yet.

I don't have enough law background to know if this is truly unprecedented in this way, but what it if is?  One could easily argue that the nature of the "enemy" here, being that they don't have the courtesy to wear uniforms that indicate their combatant status and which side they are on, is fairly unprecedented as well.  As is the President's claim that he has unilateral power to declare that there is a war at all, who this war is against, and who is or is not a combatant.  I know from past posts on this topic that many of my readers disagree with me, but I think it is perfectly fine for the Supreme Court, encountering this new situation, sides with the individual over the government.

Update #2, via the Onion 9/11 issue:

Bush is acting with the full support of Congress, which on Sept. 14
authorized him to use any necessary force against the undetermined
attackers. According to House Speaker Dennis Hastert (R-IL), the
congressional move enables the president to declare war, "to the extent
that war can realistically be declared on, like, maybe three or four
Egyptian guys, an Algerian, and this other guy who kind of looks
Lebanese but could be Syrian. Or whoever else it might have been.
Because it might not have been them."...

U.S. Sen. John McCain (R-AZ), one of Congress' decorated war
veterans, tried to steel the nation for the possibility of a long and
confusing conflict.

"America faces a long road ahead," McCain said. "We do not yet know
the nature of 21st-century warfare. We do not yet know how to fight
this sort of fight. And I'll be damned if one of us has an inkling who
we will be fighting against. With any luck, they've got uniforms of
some sort."...

Secretary of Defense Donald Rumsfeld said the war against terrorism will be different from any previous model of modern warfare.

"We were lucky enough at Pearl Harbor to be the victim of a craven
sneak attack from an aggressor with the decency to attack military
targets, use their own damn planes, and clearly mark those planes with
their national insignia so that we knew who they were," Rumsfeld said.
"Since the 21st-century breed of coward is not affording us any such
luxury, we are forced to fritter away time searching hither and yon for
him in the manner of a global easter-egg hunt."

One of the problems I have making common cause with many of the civil rights critics of the Bush administration is that they tend to hurt legitimate civil rights by exaggerating their claims into the ridiculous. 

A good example is detentions at Gitmo.  I believe strongly that the Bush administration's invented concept of unlimited-length detentions without trial or judicial review is obscene and needed to be halted.  But critics of Bush quickly shifted the focus to "torture" at Gitmo, a charge that in light of the facts appears ridiculous to most rational people, including me.  As a result, the administration's desire to hold people indefinitely without due process has been aided by Bush's critics, who have shifted the focus to a subject that is much more easily defended on the facts.

Interestingly, as I watch the Beeb this morning, Britain is having a similar debate.  Its hard to figure the whole thing out from the TV coverage and sound bites, but apparently Britain has the ability to detain suspected terrorists for 90 days, and wants the power to extend this.

Many people have told me that I am an insanely naive Pollyanna for not accepting the need for indefinite detention without trial of suspected terrorists.   I have explained in the past that we don't have the right to do this with our own citizens, but we also don't have the right to do this with any other human being (the short explanation:  The individual rights we hold dear are our rights as human beings, NOT as citizens.  They flow from our very existence, not from our government and not from the fact of our citizenship.   In some ways, the government probably has less right to abuse non-citizens, not more).

Here is a test:  If the government had always had this power, ie to detain indefinitely people it thought somehow "dangerous" to "someone"  (with the government getting to define both these terms), how abused would it have been in the past.  My answer is "very much".  Who would J. Edgar Hoover have detained?  Would Martin Luther King have spent his life in jail, much like Nelson Mandela?

By the way, I have no idea what Hamdan vs. Rumsfeld means for all this, since I haven't read it and pundits seem to disagree on what it means  (unfortunately, this may be something we live with a while, a feature of the new muddled "Justice Kennedy compromise" we seem to have to live with on a number of decisions).  If anyone thinks they have seen a definitive analysis, please link it in the comments.