A perfect example of that reversal is found in the arrogant attitude of Vice President Cheney. He was being interviewed by Martha Raddatz of ABC. She noted that two-thirds of the American people thought that the war in Iraq was not worth fighting.
“So?” Cheney asked.
“So? You don’t care what the American people think?”
Cheney doesn’t care but the Supreme Court does. Three times since 2004 it has rebuked the lawless Bush administration with ringing declarations that this is a nation of laws, not men.
The latest decision, Boumediene v. Bush, declared that prisoners held at Guantanamo have a constitutional right to challenge their detention in U.S. courts.
Habeas corpus, the Great Writ, still rules despite the efforts of Bush to quash it.
The roots of habeas corpus go back nine centuries to England. Its rudiments can be found in the Magna Carta of 1215 when barons at Runnymede forced King John to yield some of his arbitrary power. Habeas corpus was codified by the English Parliament in 1679.
In America, habeas corpus has been considered legally holy. It has been called “the most important human right in the Constitution.” Chief Justice Chase declared in a 1868 ruling that habeas was “the best and only sufficent defense of personal freedom.”
In a 1963 case, Justice Brennan was absolutely ecstatic about the writ. He wrote:
“Its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society government must always be accountable to the judiciary for a man’s imprisonment.”
Justice Kennedy, who wrote the majority opinion in Boumediene, said that liberty and security must be reconciled “within the framework of the law,” that President Bush cannot “switch the Constitution on or off at will.” He added:
“Within the Constitution’s separation of powers few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the executive to imprison a person.”
Many of the 270 Guantanamo prisoners have been held for six years without charges. Geoffrey Stone, University of Chicago law professor, said Bush “has made extreme claims that are lawfully and constitutionally unfounded.”
But to dissenting Chief Justice Roberts, the Great Writ is nothing more than “a procedural right.”
Another dissenter, the reactionary Justice Scalia, complained of the majority’s “inflated notion of judicial supremacy” and declared that the ruling “will almost certainly cause more Americans to be killed.” Scalia is the same despicable justice who told BBC in February that torture may sometimes be justified.
Scalia, a supposedly brilliant guy, speaks an infinite deal of nonsense. He concluded his dissent by declaring that “the court warps our Constitution” and that the nation “will live to regret” the decision.
Scalia is a sorry excuse for a justice on a court that once had giants like Brandeis, Holmes, Warren, Murphy, Black and Douglas.
A New York Times editorial praised the Boumediene decision and denounced the “imperial overreaching” of Bush. It noted:
“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.”
Columnist Eugene Robinson, noting that Bush had put a “chainsaw to the rule of law,” wrote that he was amazed that there was anything to debate about “arbitrary arrest, indefinite detention and torture.”
Bush also put a chainsaw to the Constitution, international treaties and the military code of justice.
Few people know what it means to be a true American, to be a real patriot. It is not wearing a flag pin. It is not flying the flag.
No. It is words like these by Holmes dissenting in Olmstead (1928): “For my part I think it is less evil that some criminals should escape than that the government should play an ignoble part.”
Or those by Brandeis dissenting in Olmstead: “Our government is the potent, the omnipresent teacher…it teaches the whole people by its example. If the government becomes a lawbreaker, it breeds contempt for the law.”
Or these by Murphy dissenting in In Re Yamashita (1946): “The immutable rights of the individual…belong to every person on the world.”
Jake Highton teaches journalism at the University of Nevada, Reno.