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Thursday, June 12, 2008
Who's Afraid of Habeas Corpus?
This morning brings the long-awaited Supreme Court opinion on the availability of habeas corpus to the foreign detainees being held at Guantanamo Bay. Though the result was probably predictable ever since the Court abruptly changed its mind and granted the case last year, it still tingles the senses to read a bold, liberty-affirming opinion from Justice Kennedy issued over the sharp (and, in one case, bombastic) dissents of four of his colleagues.
The opinions are dense--and like all the other war-on-terror opinions--will take years to fully digest. For now, I want to broach one question raised by today's opinion: if, as all the Justices seem to either agree or assume, the detainees are entitled to some sort of serious yet limited procedure to test their confinement, why all the posturing and screaming? Put differently, why does the writ of habeas corpus scare the conservative Justices so much?
I'm curious what other people have to say, but my initial speculation is that answer is more cultural and political than legal. It seems to me that, in ways that would have been hard to predict, the battle over the availability of the ancient writ has become the touchstone in a debate about who we are as a people and how we should respond to acts of unspeakable barbarity.
Many in the current administration took 9-11 as a signal that our traditional ways of dealing with security threats and criminal atrocities were insufficient for the complex threat posed by modern terrorism. In the new post-9-11 era, our most basic institutional settlements, legal rules, and norms of behavior were back on the table, subject either to renegotiation or unilateral executive abandonment. Those who took the contrary view were labeled as naive and politically vilified.
The major war-on-terror cases to have reached the Supreme Court have all raised different legal issues, but they have all shared a striking thematic similarity: in each case, the Court has rejected the claim that the post-9-11 world is a legal tabula rasa. Instead, the Court has consistently held that preexisting treaties, statutes, and Constitutional understandings continue to govern.
In that context, it is not surprising that the legal battles have increasingly focused on the availability of habeas corpus. In no small measure, the question whether individuals detained as suspected terrorists may pursue relief through the ancient writ or must instead rely upon new streamlined procedures drawn up in the throws of the current criss has come to stand in for the broader question of whether we must fundamentally change who we are as a society to respond to the threat of terrorism.
While others might find it foolish, I find the Court's course in these cases noble. Having said that, I totally understand why today's decision riles the blood of Justice Scalia (and embitters his less hotblooded colleagues on the right). While legally the decision will probably have limited consequences, culturally and politically it is a stinging rebuke to the Bush Administration's view of the post-9-11 world.
Posted by amsiegel on June 12, 2008 at 03:41 PM in Constitutional thoughts, Current Affairs | Permalink
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Comments
Isn't it significant that the action in this case was not "unilateral executive abandonment," or solely a "stinging rebuke to the Bush Administration[]", but congressional legislation signed by the Executive? Or, put another way, that this represents a "statute[]" relevant to the legal analysis, in which two branches of government acted?
Posted by: anon | Jun 12, 2008 3:55:14 PM
Anon--
Legally, the fact that a challenged action comes in the form of a statute rather than a unilateral executive action sometimes matters greatly (for example, in a variety of complicated separation of powers questions) and sometimes matters not at all (for example, when the government action is challenged on First Amendment or Equal Protection grounds). The Suspension Clause is something of an odd-duck in that it is primarily an individuals rights provision but has significant structural implications.
But, more importantly, my post was really about culture and politics, not law, and, from that perspective, it strikes me as quite clear that the argument that we must rethink all of our basic structures for allocating powers and protecting freedoms after 9-11 is a position that is linked inextricably with the President, not with Congress. The White House formulated both the policies and the political tactics that came out of 9-11 and has used claims of secret information, threats of unilateral action, and promises of political retribution to bring Congress along. That doesn't make the laws Congress passed any less valid, but it does make Congress seem less invested in that world view.
Posted by: Andrew Siegel | Jun 12, 2008 5:18:47 PM
I think Andrew's comment captures the very modern understanding of the President as "legislator-in-chief." The prevailing political understanding is that a President with a congressional majority really sets the legislative agenda, less so than members of Congress. And both the DTA and MCA were products of "compromises" between congressional proposals and what the Administration wanted, that really gave the Administration most of what it wanted.
Posted by: Howard Wasserman | Jun 12, 2008 5:35:36 PM
It is now the case that under our Constitution noncitizens abroad have greater constitutional habeas rights than citizens who engage in rebellion or insurrection on American soil. There is nothing noble about that anamoly.
Posted by: Oliphant | Jun 13, 2008 12:28:23 AM
Andy: If we could fast-forward five years and see that detainees actually get less procedure and more delay under whatever system the District Court cooks up under this opinion than they did under the DTA, would you still support the majority opinion? Or if procedures under the two systems turn out to be similar, would you still support the Court overruling Congress and the Pres? I'm curious how much of your argument rests on the rhetorical force of "habeas."
Posted by: anon | Jun 13, 2008 10:23:16 AM
Anon asks a great question that gets at the heart of why it is so difficult to disentangle law, politics, and culture. At some level, of course, it should make no difference what you call a hearing or exactly how it is constituted as long as it is speedy, fair, and accurate. Now, the opinion flatly rejects the conclusion that the statute's procedures achieve these goals as well as traditional habeas.
But, assuming that they do, why should we care? I think the answer has to lie in the fact that something bigger is at stake in this case. A bunch of folks with a preexisting agenda (Cheney, Addington, et al.) used a national tragedy as the lever to try and dismantle a set of institutional arrangements and constitutional understandings that are at the core of what makes the American system of government such a noble experiment. Those of us with faith in American constitutionalism ought to resist such a powergrab both on principle and to avoid the more serious consequences that such an approach might have (and is already having) in other contexts.
Posted by: Andrew Siegel | Jun 13, 2008 11:06:11 AM
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