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Friday, June 13, 2008

The “Stable Bulwark of Our Liberties”


The U.S. Supreme Court yesterday struck a blow for the separation of powers and dealt the Bush administration a big setback by ruling that suspects held without charge at Guantanamo Bay, Cuba, have the right to contest their imprisonment under the doctrine of habeas corpus.

Simply put, the Court held that the government may not keep anyone in custody without having to justify its actions to a judge.

In the 5-4 ruling the Court in said Congress had unconstitutionally suspended habeas corpus for the detainees. It ruled that neither the fact that the petitioners were foreign nationals nor the fact that Guantanamo is not formally U.S. territory mattered to the question. Habeas corpus — the Great Writ — was at the core of the Founders’ efforts to deprive government of arbitrary power, the majority said. (For an earlier discussion of habeas corpus and the courts, see this.)

Writing for the majority, Justice Anthony Kennedy said, “[P]rotection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights. In the system conceived by the Framers the writ had a centrality that must inform proper interpretation of the Suspension Clause.”

The Suspension Clause of Article I, Section 9, of the U.S. Constitution states: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The privilege is not restricted to U.S. citizens.

Military Commissions Act

In a law signed by President Bush in 2006, the Military Commissions Act (MCA), Congress sought to take away the courts’ jurisdiction over habeas-corpus petitions from Guantanamo detainees. The majority declared that section of the MCA unconstitutional. The ruling is the culmination of a years-long back-and-forth between Congress and the President on the one hand and the Supreme Court on the other.

The Bush administration maintained that an adequate alternative to habeas corpus had been provided, but the majority disagreed. In fact, under current law, detainees have none of the usual safeguards accorded people accused of crimes. A detainee is put before a military Combatant Status Review Tribunal to determine if he is an enemy combatant, but he can’t appear with a lawyer, examine the evidence against him, or call witnesses. The wire services report that In a number of cases, a second review tribunal was convened after the first panel concluded that an inmate wasn’t an enemy combatant. Detainees have a severely limited right of appeal to the courts, but the justices said this was no substitute for a habeas-corpus proceeding. For one thing, the burden of proof is on the detainee.

The Court rejected the argument that the detainees are in effect conventional prisoners of war, since they can be held indefinitely without charge — some have been held for six years — and some were apprehended far from any actual battlefield. The costs of delay can no longer be borne by those who are held in custody, Kennedy wrote.

As the New York Times reported,

[T]he man who gave the case its title, Lakhdar Boumediene, is one of six Algerians who immigrated to Bosnia in the 1990′s and were legal residents there. They were arrested by Bosnian police within weeks of the Sept. 11 attacks on suspicion of plotting to attack the United States embassy in Sarajevo — plucked from their homes, from their wives and children, as their lawyer, Seth P. Waxman, a former solicitor general put it in the argument before the justices on Dec. 5.

The Supreme Court of Bosnia and Herzegovina ordered them released three months later for lack of evidence, whereupon the Bosnian police seized them and turned them over to the United States military, which sent them to Guantaacute;namo.

Other suspects ended up in U.S. custody under dubious circumstances. For example, after 9/11 the U.S. government offered cash rewards in Saudi Arabia and elsewhere to people who turned in suspected terrorists. Such a method of identifying threats is tainted, to say the least.

Separation of Powers

What is heartening about the decision is the majority’s emphasis on how important habeas corpus is to the never-ending effort to keep government on a short leash. Key to that, it said, is the separation of powers. Without habeas corpus, the executive branch acquires the powers of the judiciary in conflict with the intent of the framers.

The opinion recited a detailed history of the doctrine, which formally began with Magna Carta 793 years ago Sunday — on June 15, 1215 — and noted that its application was inconsistent under the kings of England. The justices emphasized that even in dangerous times limitations on government power are critical. As Kennedy put it, The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

Because of the significance of the ruling and its implications for limiting government power, it is worth quoting some of the Court’s insights.

The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system….

This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty.

The majority quoted the words of the renowned jurist William Blackstone (quoted by Alexander Hamilton in Federalist 84):

To bereave a man of life … or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

As the Court noted, Blackstone described the Habeas Corpus Act of 1679 as the stable bulwark of our liberties.

The Court went on:

The [Suspension] Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the delicate balance of governance that is itself the surest safeguard of liberty…. The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to accounthellip;. The separation-of powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.

hellip; [T]he writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers….

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

Whatever the leeway extended to the U.S. government in past wars, the Court majority understands that the current situation is different and fraught with the potential for tyranny in the name of security. The administration has declared the entire world — including the territory of the United States — a battlefield in a war on terror that by its very nature has no specific adversary or identifiable end point. Thus defenders of liberty must be especially wary of claims to extraordinary powers.

As the Irish statesman John Philpot Curran said, The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt.


  • Sheldon Richman is the former editor of The Freeman and a contributor to The Concise Encyclopedia of Economics. He is the author of Separating School and State: How to Liberate America's Families and thousands of articles.