What once was lost now is found
The U.S. Supreme Court found Habeas. He was hiding in Article 1, Section 9 of the Constitution.
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.
Reactions to the ruling have been rolling in. National's Blog of Rights is all over it, including this from legal director Steve Shapiro:
Today’s decision forcefully repudiates the essential lawlessness of the Bush administration’s failed Guantánamo policy. It should also mark the beginning of the end of the military commission process, which permits the use of coerced evidence and hearsay and thus cannot survive the constitutional scrutiny that today’s decision demands. It is time to close Guantánamo, end indefinite detention without charge and restore the rule of law.
And, of course, Glenn Greenwald has plenty to say:
The Military Commissions Act of 2006 was -- and remains -- one of the great stains on our national political character. It was passed by a substantial majority in the Senate (65-34) with the support of every single Senate Republican (except Chafee) and 12 Senate Democrats. No filibuster was even attempted. It passed by a similar margin in the House, where 34 Democrats joined 219 Republicans to enact it. One of the most extraordinary quotes of the post-9/11 era came from GOP Sen. Arlen Specter, who said at the time that that the Military Commissions Act -- because it explicitly barred federal courts from hearing habeas corpus petitions brought by Guantanamo detainees -- "sets back basic rights by some 900 years" and was "patently unconstitutional on its face" -- and Specter then proceeded to vote for it.
The greatest victim of the 9/11 attack has been our core, defining constitutional liberties. Of all the powers seized by this administration in the name of keeping us Safe, the power to imprison people indefinitely with no charges and no real process is the most pernicious.
The Supreme Court today did what the Founders envisioned it should do: it protected our basic constitutional guarantees from erosion and assault by a corrupt majority within the political class. In so doing, the Court took a mild though important step in reversing some of the worst and most tyrannical excesses of the last seven years.
So what does this mean going forward? Analysis from today's Philadelphia Inquirer:
But Sen. Arlen Specter of Pennsylvania, ranking Republican on the Judiciary Committee, told the Washington Post that the limited information made public so far about the detainees' cases had been unconvincing.
"I think that while there are still tremendous concerns about a terrorist threat, the administration has not made its case that the people in Guantanamo really are threats," he said.
In the habeas corpus hearings, the burden will be on the government to show that it has sufficient evidence that the men are enemy combatants and can be charged with crimes. While it is unlikely any of the detainees will appear at the hearings, they will be able to offer exculpatory evidence. Judges can settle on remedies that include ordering release.
"My guess is we're going to see a high number of people who the government will have to release," said Michael Ratner, president of the Center for Constitutional Rights.
Yesterday was a good day for liberty.
Andy in Harrisburg