Supreme Court Barely affirms our Constitutional right to trial, soberingly narrow victory for keeping some of our Civil Liberties

Published: June 13, 2008

For years, with the help of compliant Republicans and frightened Democrats in Congress, President Bush has denied the protections of justice, democracy and plain human decency to the hundreds of men that he decided to label “unlawful enemy combatants” and throw into never-ending detention.

Twice the Supreme Court swatted back his imperial overreaching, and twice Congress helped Mr. Bush try to open a gaping loophole in the Constitution. On Thursday, the court turned back the most recent effort to subvert justice with a stirring defense of habeas corpus, the right of anyone being held by the government to challenge his confinement before a judge.

The court ruled that the detainees being held in Guantánamo Bay, Cuba, have that cherished right, and that the process for them to challenge their confinement is inadequate. It was a very good day for people who value freedom and abhor Mr. Bush’s attempts to turn Guantánamo Bay into a constitutional-rights-free zone.

The right of habeas corpus is so central to the American legal system that it has its own clause in the Constitution: it cannot be suspended except “when in cases of rebellion or invasion the public safety may require it.”

Despite this, the Bush administration repeatedly tried to strip away habeas rights. First, it herded prisoners who were seized in Afghanistan, and in other foreign countries, into the United States Navy base at Guantánamo Bay and claimed that since the base is on foreign territory, the detainees’ habeas cases could not be heard in the federal courts. In 2004, the court rejected that argument, ruling that Guantánamo, which is under American control, is effectively part of the United States.

In 2006, the court handed the administration another defeat, ruling that it had relied improperly on the Detainee Treatment Act of 2005 to hold the detainees on Guantánamo without giving them habeas rights. Since then, Congress passed another law, the Military Commissions Act of 2006 that tried — and failed horribly — to fix the problems with the Detainee Treatment Act.

Now, by a 5-to-4 vote, the court has affirmed the detainees’ habeas rights. The majority, in an opinion by Justice Anthony Kennedy, ruled that the Military Commissions Act violates the Suspension Clause, by eliminating habeas corpus although the requirements of the Constitution — invasion or rebellion — do not exist.

The court ruled that the military tribunals that are hearing the detainees’ cases — the administration’s weak alternative to habeas proceedings in a federal court — are not an adequate substitute. The hearings cut back on basic due process protections, like the right to counsel and the right to present evidence of innocence.

It was disturbing that four justices dissented from this eminently reasonable decision. The lead dissent, by Chief Justice John Roberts, dismisses habeas as “most fundamentally a procedural right.” Chief Justice Roberts thinks the detainees receive such “generous” protections at their hearings that the majority should not have worried about whether they had habeas rights.

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.

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