Topic: Law and Civil Liberties

Some Reactions to the Supreme Court’s Ruling About Habeas Corpus and Guantanamo

Today George Will slams John McCain for his “extravagant condemnation” of last weeks ruling concerning habeas corpus and Guantanamo.

Here’s an excerpt:

The day after the Supreme Court ruled that detainees imprisoned at Guantanamo are entitled to seek habeas corpus hearings, John McCain called it “one of the worst decisions in the history of this country.” Well….

The purpose of a writ of habeas corpus is to cause a government to release a prisoner or show through due process why the prisoner should be held. Of Guantanamo’s approximately 270 detainees, many certainly are dangerous “enemy combatants.” Some probably are not. None will be released by the court’s decision, which does not even guarantee a right to a hearing. Rather, it guarantees only a right to request a hearing. Courts retain considerable discretion regarding such requests.

McCain, co-author of the McCain-Feingold law that abridges the right of free political speech, has referred disparagingly to, as he puts it, “quote ‘First Amendment rights.’ ” Now he dismissively speaks of “so-called, quote ‘habeas corpus suits.’ ” He who wants to reassure constitutionalist conservatives that he understands the importance of limited government should be reminded why the habeas right has long been known as “the great writ of liberty.”

No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America’s Constitution, which limits Congress’s power to revoke habeas corpus to periods of rebellion or invasion. Is it, as McCain suggests, indefensible to conclude that Congress exceeded its authority when, with the Military Commissions Act (2006), it withdrew any federal court jurisdiction over the detainees’ habeas claims?

As the conservative and libertarian Cato Institute argued in its amicus brief in support of the petitioning detainees, habeas, in the context of U.S. constitutional law, “is a separation of powers principle” involving the judicial and executive branches. The latter cannot be the only judge of its own judgment.

In Marbury v. Madison (1803), which launched and validated judicial supervision of America’s democratic government, Chief Justice John Marshall asked: “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” Those are pertinent questions for McCain, who aspires to take the presidential oath to defend the Constitution.

Read the whole thing. The Cato legal brief quoted can be found here.

Steve Chapman’s latest column is also about the Supreme Court ruling. Here’s an excerpt:

The administration asserted that in time of war, even an unconventional war against a shadowy foe, the executive branch has the power to capture a foreigner abroad and hold him for the rest of his life, without any independent review by the courts.

Short of claiming the right to do that to an American citizen arrested on U.S. soil—a claim the administration had also made, only to see it repudiated by the courts—that’s about as vast and dangerous a power as you could find. So it is not surprising that the Supreme Court balked.

The justices insisted that the constitutional guarantee of habeas corpus, which lets prisoners challenge their confinement, must be respected. Except when Congress formally suspends that right, wrote Justice Anthony Kennedy, it assures that “the judiciary will have a time-tested device … to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty.”

Good stuff. The full article is here.

Update: Steve Chapman has a follow up article here.

But What About the Children?

Sometimes the Supreme Court makes news for the cases it doesn’t take, not just the opinions it produces in cases it hears.  Today marked one such occasion, when the Court denied cert in Dupuy v. McEwen, in which Cato filed an amicus brief.

For more than a decade, the Illinois Department of Child and Family Services has investigated parents based on anonymous tips of abuse or neglect, and deemed them “indicated” after a cursory investigation by state officials who have no effective check on their unilateral authority. Unlike actual child abuse cases, in which the State removes children from abusive situations with judicial approval, the State takes a different route with “indicated” parents – threatening them with what it calls a “Safety Plan.” In so doing, the State demands that parents abandon their homes and families pending an investigation of unlimited duration. Frequently State officials will threaten to remove children immediately into foster care if the parents do not “consent” to the plans without counsel and without negotiation. According to the Seventh Circuit, parents are not allowed to challenge the plans in a judicial or administrative forum if they “consent” to the State’s demands, even if they do so only after being threatened with the loss of their children. Our brief, which supported the class of parents petitioning the Supreme Court for review of these practices, argued that these “Safety Plans” violate the Due Process Clause because they infringe on fundamental family rights without affording any opportunity to challenge state action. They also vest unfettered discretion in state officials to infringe on parents’ fundamental rights. Finally, they represent an unconstitutional condition that forces parents to make an agonizing choice between abandoning their children in the hope that the State’s vague concerns would be mollified by subsequent investigation, or taking the risk that the State would make good on its threat to remove their children into foster care without a hearing.

We had some hope on this case – as did SCOTUSblog – because the Court had asked Illinois to respond to the cert petition (immediately after receiving our amicus brief I should add!), and also because SCOTUSblog had picked it as “one to watch,” but it was not to be. It’s not a tremendously surprising outcome given the tangled procedural history underlying the case – making it a less than ideal vehicle for presenting these issues – but still a disappointing result for parents, children, and freedom from state coercion.

What Do You Call the Ring in a Bull’s Nose? Perhaps “KST”?

While the country moves forward with increasing confidence in its ability to meet the security challenges posed by terrorism, the administration seems still utterly, utterly spellbound.

Take, for example, National Security Presidential Directive 59/Homeland Security Presidential Directive 24. Issued June 5th, it (take a breath … wait for it …) “establishes a framework to ensure that Federal executive departments and agencies … use mutually compatible methods and procedures in the collection, storage, use, analysis, and sharing of biometric and associated biographic and contextual information of individuals … .”

That means, roughly, “Let’s get our act together on biometrics and biometric surveillance, people!”

The directive uses a set of initials I hadn’t come across before: “KST.” This stands for “known and suspected terrorists.” As in, we’re going to “collect, store, use, analyze, and share biometrics to identify and screen KSTs and other persons who may pose a threat to national security.”

Now, to be clear, there are terrorists, and there may be some in the country - terrorist precursors, perhaps. But I don’t think there are enough of them, or enough danger from them, to merit awarding them their own initials. Even in acronym- and initial-happy Washington, D.C., these things are reserved for things of greater significance.

This reveals the thrall in which the administration is still held by terrorism. “We’re not up against a few small bands of sociopathic ideologues. No, we’re up against a movement with all the power of our ‘FBI’, ‘CIA’, ‘DoD’, and ‘DoJ’.”

I’ve posted here before about terrorism as a strategy, suggesting certain counter-strategic behaviors. Terrorists gain by drawing attention to themselves, wrapping themselves in the romance of rebellion, and being seen as legitimate rivals to their enemies. By dubbing the threat “KST,” the administration grants terrorists that legitimacy. It tells audiences ideologically and physically near terrorists that we’re still scared, which does terrorists a tremendous favor. (I, for one, am not scared; I’m embarrassed.)

On the merits, biometrics are occasionally necessary, but essentially impotent against the well-known technique of using “clean-skin” terrorists (see, e.g., 9/11, Oklahoma City). The NSPD/HSPD doesn’t appear to have a lot of substance other than to promote more ferment and federal spending on biometric surveillance technology.

Boumediene Ruling

The Supreme Court issued a very important ruling regarding the “Great Writ” of habeas corpus today.

Lengthy ruling … which I’m still studying, but the key line thus far is this: “The test for determining the scope of this [habeas] provision must not be subject to manipulation by those whose power it is designed to restrain.” George W. Bush and his lawyers purposely kept prisoners off of U.S. soil and argued that habeas was not available to non-citizens beyond U.S. territory (Gitmo).  Today, the Supreme Court rejected that claim.

More here and here.

Civil Liberties in Britain

David Davis, the shadow home secretary in the United Kingdom (that is, the prospective attorney general should the Conservative Party take power), has resigned his seat in the House of Commons to protest Parliament’s approval of a bill that would allow the government to hold terror suspects up to 42 days without charges.

Davis, generally regarded as a Thatcherite, said:

Until yesterday I took a view that what we did in the House of Commons representing our constituents was a noble endeavour because for centuries of forebears we defended the freedom of people. Well, we did, up until yesterday.

This Sunday is the anniversary of Magna Carta, a document that guarantees the fundamental element of British freedom, habeas corpus. The right not to be imprisoned by the state without charge or reason.

But yesterday this house allowed the state to lock up potentially innocent citizens for up to six weeks without charge.

He denounced the bill as “the one most salient example of the insidious, surreptitious and relentless erosion of fundamental British freedom” and went on to cite ID cards, “an assault on jury trials,” and “a DNA database bigger than any dictatorship has” as other elements of that erosion.

Davis said he would run in a special election to reclaim his seat by campaigning “against the slow strangulation of fundamental British freedoms by this government.” Observers expect him to win handily, as the Labour Party has fallen dramatically in the polls. But Conservative leader David Cameron has already appointed a new shadow home secretary, so Davis may have forfeited his leadership role.

I’m reminded of Phil Gramm, a Democratic congressman, who worked with President Reagan and the Republicans to cut taxes and spending in the early 1980s. When the Democratic leadership removed him from the Budget Committee, he switched to the Republican Party. Saying that the voters of his district should have the chance to decide whether they wanted a Republican representative, he resigned, ran in the special election as a Republican, was easily elected on Lincoln’s birthday, and the following year waltzed into the U.S. Senate.

Will Davis find such success by resigning and giving the voters a chance to assess his performance? Only time will tell… In the meantime, you can watch the video of his five-minute speech here.