16 July 2008

Habeas, he said

Well, I've learned as much as I care to about habeas corpus, and my reading of it tends to side with the dissent in Boumediene.
The writ is labeled as a privilege in the Constitution and the legislature has the authority to suspend it. Whether only in the cases of Rebellion or Invasion seems a bit restrictive if generally "the public Safety may require it." In other words, I don't think Congress only has the power to restrict habeas during a Civil War or foreign invasion. I think Lincoln over-stepped his bounds during the Civil War, but he did have the aggravating factor that congress was not in session when he ordered the writ suspended. Congressional authorization was sought and received when congress reconvened.
Bush, as is typical, was completely off the reservation in thinking that he could detain anyone, anywhere, indefinitely due to his "unitary" authority, without any legislative aid. I don't think the Authorization for Use of Military Force implicitly grants the president this authority, either. The Military Commissions Act of 2006, however, did.
I appreciate the holding opinion in Boumediene, especially as it relates to the open-endedness of the conflict and the fact that we do not have a formal declaration of war with an established state to whom the prisoners would be returned upon formal cessation of hostilities. But I do not think that this trumps Congressional authority in this instance. If these are prisoners taken on the battlefield, then the executive, with congressional authorization, has the ability to hold prisoners without challenge.
The question, to me, is not whether constitutional rights extend to foreigners. We established a limited government. The question is whether the constitution grants the government the authority to detain non-citizens indefinitely without recourse. Also, what of those not detained on the actual field of battle. Better yet, what is the actual field of battle. My heart says that the government was not given that authority (security, security, they cried!, notwithstanding).
My head says that based on our history and the relevant texts (and yes, past and current congressional quiescence in times of conflict), the legislature and executive were correct and the supremes over-stepped their boundaries on this one.
That being said, the administration and congress are now in a position to have to create a system where they must justify the detention of those held (one of the major discrepancies between this case and Eisentrager is that the enemy aliens in that case admitted they were such; the current case involves people challenging their classification to begin with). If the government can prove its case for holding them, then they're fine. This only increases openness and accountability from our government. Which is as it should be.
And for those that think that any restriction on Bush's "unitary" authority as commander-in-chief will directly lead to another attack, please let it be known that if the executive authority was enforcing the laws that were then on the books, 9/11 could have been prevented.
Neither the world nor the constitution changed on 9/11, a bunch of assholes took advantage of non-enforcement and got lucky. To take credit for there not being another attack since then ignores the fact that the first attack did happen on their watch.
Neither our constitution nor our sovereignty has ever been at stake. And for the administration constantly to float the canard otherwise is insulting.
The sacrifice of liberty for security is a losing proposition all around.

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