The Constitution wins, by one vote

Or, why the stakes are so high this November

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Untitled Document After 9/11, the U.S. rounded up hundreds of foreigners suspected of having ties to Al Qaeda or the Taliban, designated them enemy combatants, and imprisoned them. Many ended up at the naval base at Guantánamo Bay. Detainees challenged their imprisonment; at the very least, they argued, they had a right to know why they were being held. Many, as has been incontrovertibly shown over the past six years, had no ties to terrorism; some were guilty of little more than being Muslim in the wrong place at the wrong time.
The detainees applied to our courts for writs of habeas corpus, but their petitions were dismissed; judges held that Guantánamo isn’t part of the United States — we leased it long ago from a compliant Cuban government — so the Constitution doesn’t apply. The U.S. Supreme Court, however, reversed the lower courts and allowed the cases to proceed.
Lacking faith in our courts, in 2005 President George W. Bush and the Republican-led Congress rushed through the Detainee Treatment Act, which said that “no court, justice, or judge shall have jurisdiction” to consider any application for habeas corpus filed by a detainee at Guantánamo. Again, the U.S. Supreme Court gummed up the works: It ruled that the Detainee Treatment Act didn’t apply to pending appeals. So Bush and Congress, just weeks before the November 2006 election, quickly passed the Military Commissions Act, which sought by statute to strip the federal courts of any jurisdiction over the detainees. Last week, for the third time, the U.S. Supreme Court — by the slimmest of majorities, a 5-4 vote — reaffirmed the habeas rights of detainees.
“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony M. Kennedy wrote. Justice Antonin Scalia, in a hyperbolic dissent, said that the majority’s ruling would “almost certainly cause more Americans to get killed.” (Scalia pointed out that some detainees who have been released by the military have taken up arms against the U.S. or engaged in terror; he conveniently ignored reports by our intelligence agencies that our policies at Guantánamo were stoking the jihad movement.)
Bush signaled that he was unhappy with the ruling; his administration said it was considering another new law. To be sure, it’s not clear what happens next: Nobody is predicting that the gates of Guantánamo will be swinging open anytime soon.
Of course, it’s a safe assumption that most of you don’t really care. After all, when the economy is in the crapper, gas prices are reaching for the sky, and Angelina Jolie is dishing on the wonders of sex during pregnancy, why worry about a bunch of foreigners who’ve been out of sight and out of mind, in some cases, for more than six years? To you I say: Read the ruling. Boumediene et al. v. Bush isn’t exactly riveting — I’m still sorting out exactly what the English monarch, Scotland, and Ireland have to do with a 45-square-mile piece of Cuba — but the majority’s ruling is a valuable tutorial, reminding us why habeas corpus is integral to American tradition, why the framers ensured that that right was spelled out in the Constitution, and why it could only be suspended — not eliminated — in the extraordinary cases of rebellion or invasion.
The ruling reminds us that Americans don’t believe in depriving people of their liberty, and holding them indefinitely, without just cause. That expression of our fundamental values, which five of the nine justices on the U.S. Supreme Court had the courage to restate last week, is something we need to take to heart at the polls this November.
Here’s why. On this issue, the two men who will be nominated for president by the Republican and Democratic parties are polar opposites. U.S. Sen. John McCain played a key role in writing the Military Commissions Act; he and 64 other members of the Senate, including 12 Democrats, voted for passage. Thirty-four members of the U.S. Senate, including Illinois’ Dick Durbin and Barack Obama, voted against it. Obama could be our next president, so let’s revisit what he said on Sept. 28, 2006, after the Senate voted: “Instead of not just suspending, but eliminating, the right of habeas corpus — the seven-century-old right of individuals to challenge the terms of their own detention — we could have given the accused one chance — one single chance — to ask the government why they are being held and what they are being charged with.
“But politics won today. Politics won. The administration got its vote, and now it will have its victory lap, and now they will be able to go out on the campaign trail and tell the American people that they were the ones who were tough on the terrorists.
“And yet we have a bill that gives the terrorist mastermind of 9/11 his day in court, but not the innocent people we have accidentally rounded up and mistaken for terrorists — people who may stay in prison for the rest of their lives. . . . The problem with this bill is not that it’s too tough on terrorists. The problem with this bill is that it’s sloppy. And the reason it’s sloppy is because we rushed it to serve political purposes instead of taking the time to do the job right. . . .
“The sad part about all of this is that this betrayal of American values is unnecessary.”
The next president is sure to fill at least one vacancy on the court during his first term. And one vote could have changed the outcome of last week’s ruling. In other words, the stakes this November couldn’t be higher.

Contact Roland Klose at [email protected].

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