One Vote Away from Absolute Ruling Power

Is it possible for a constitutional structure of governance, founded in the name of democracy, to willingly discard the principle of a human right to habeas corpus? In a 70-page ruling in the matter of BOUMEDIENE v. BUSH, the US Supreme Court (on Thursday) came within one vote of declaring the US President an absolute sovereign in his relations with citizens of the world.

So it was with special regard that we read the following passage from the concurring opinion written by Justice Souter, and joined by Ginsberg and Breyer. We thank the stars on the flag for these three of nine justices, who declared that it is “a basic fact of Anglo-American constitutional history:

“that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention.

“And one could explain that in this Court’s exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches.

“Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.”

For what it’s worth, Justices Souter, Ginsberg, and Breyer, we’d like to say that, as we prepare to reflect upon the meaning of “flag day,” the Nation stands ready to persevere with you.

We stand with you in this matter partly because we think that Edmund Burke long ago made a good point when he argued that the history of Anglo-American Constitutional Law is founded upon a contract to which all subject peoples are rightful parties.

As Burke would put it, locking people up without them having a right to seek judicial review — this is no “mere mischief” — it is the kind of action that breaks the contract between the government and the people. That famous statesman who drew a line between good and bad causes for revolution would say that wherever the essential principles of the contract had been broken, the executive would have in fact “abdicated” his Presidency, and the office would be “thereby vacant.”

Come to think of it — a curious irony indeed — it would eventually take a Justice (Souter) appointed by Daddy Bush to support an opinion on habeas corpus that would protect the Office of the President from being vacated on account of the tyrannical whims of George, Jr.

Finally, on this strictly nonpartisan basis, we could say that John McCain’s anti-habeas reflex, exampled in his intemperate denunciation of the Court ruling (although he said he had not had time to read it yet), says at least 51 percent of what we shall need to know come November.–gm

Flag Day P.S.: The White House is reportedly seeking ways to limit the scope of the Court’s habeas ruling. Does the White House not notice that its antagonism to habeas corpus is sufficient evidence that its whole global agenda of aggression cannot be viewed as an intention to promote greater democracy?

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