It is somehow supposed to be amazing that five justices of the U.S. Supreme Court last week did not scuttle 793 years of precedent and affirm that President George W. Bush could ignore the Constitution if it suited him.
It should have been amazing that four justices were willing to do exactly that: scrap the ancient right of habeas corpus and let Bush do whatever he wanted to hundreds of men who were swept up by bounty hunters, vigilantes and American agents in Europe and the Middle East in the year or so after 9/11 and against whom in most cases little evidence of terrorist activity against the United States has ever been found.
The court ruled for the second time that the men who have been held and sometimes tortured at Guantanamo Naval Base could challenge their detention and force the government to state its case against them in federal court under a writ of habeas corpus, which is guaranteed by the Constitution to anyone held by a government of the United States and which has been the bedrock right of western civilization since King John signed the Magna Carta at Runnymede June 15, 1215.
Bush long maintained that the prisoners could be held without charges, counsel or contact with anyone in the outside world for the rest of their lives because they were neither criminals under U. S. law nor prisoners of war, either of which would have vouchsafed them some legal rights. The government created a new category called “enemy combatants” and put them in concentration camps at Guantanamo on the theory that in Cuba neither international nor U. S. law could reach them even though the U.S. leased the territory.
The cry has been that the liberal Supreme Court has spun out of control in its concern for the rights of a band of evil Muslims. It was the second time that the court invoked habeas corpus against Bush, this time striking down the act that the administration threw together to try to revoke the court's authority to defend the Constitution. The attacks on the old (pre-Bush) Republicans on the court who delivered the opinion says much about how far from the equilibrium American opinion has drifted in the hysteria over terrorism. Only the Libertarian Party has consistently protested the destruction of civil liberties.
In Great Britain, by comparison, the old Conservative Party of Winston Churchill and Margaret Thatcher is denouncing Prime Minister Gordon Brown's attempt to empower the government to detain suspected terrorists for up to 42 days before charging them. (It can detain them now for only 28 days.) The former Tory prime minister, John Major, himself the target of a terrorist assassination plot in 1991, wrote an op-ed for the Times of London this month saying that the infringement upon habeas corpus, the Bush-like surveillance schemes and Britain's participation with America in the “rendition” of prisoners to safe havens for torture eroded basic Western liberties and the British reputation in the world. He said those actions were “hardly in the spirit of the nation that gave the world Magna Carta, or the Parliament that gave it habeas corpus.”
Parliament gave average people habeas corpus and other rights (basically the 4th through the 8th amendments in the U.S. Constitution) after a 17th century version of George Bush, King Charles I, insisted on his right to imprison anyone he liked without charges “per speciale Mandatum Domini Regis” — because he was in charge.
King George III had to get a special act of Parliament so he could suspend habeas corpus briefly and detain Napoleon long enough after the emperor's surrender at Waterloo to get him exiled to a distant island. Talk about a dangerous unlawful combatant.
Chief Justice John Roberts and the other dissenters offered the theory that insisting on the rights of Guantanamo detainees was much ado about very little. It was another way of saying, who should care about a bunch of scruffy Muslims who may not share our values and could, after all, be bent on doing Americans harm? The justices' world-lit teachers never made them read “The Prisoner of Chillon” or “The Ballad of Reading Gaol.”
A few of the men at Guantanamo may actually have connived to harm Americans, but whoever they are and however they fell into U. S. custody all of them are strategically important for the president, or at least he thinks they are. They are about all that the administration has to show for the promise to bring to justice Osama bin Laden and the others responsible for 9/11. Having to show what, if anything, the government has on them would finally unravel the administration's claim that at least in this one field, national security, it was competent.
You can look at the court's decision another way, which is that we are only one Supreme Court justice away from, in John Major's description, real tyranny. Sen. John McCain says as president he would appoint justices exactly like Bush's two. Based on his past opposition to torture and Guantanamo, he's probably lying about that, although he joined Bush in denouncing the habeas decision. It is nevertheless a risk worth avoiding.