The small wow is that yesterday the Supreme Court saved the writ of habeas corpus. This is being treated as BIG NEWS across the land, and it is, but I am giving it only a small wow. After all, the Supreme Court is supposed to save the writ of habeas corpus. That’s it’s job. So it’s nice to see the Court doing it’s job, but it should not come as that much of a surprise to us. It gets credit, but not extra credit, for doing what it’s supposed to do.
Most people probably could not explain what the writ of habeas corpus is, but most people have an inherent grasp of it. What surprises me about the news coverage of the Court’s decision, and indeed, of the underlying constitutional struggle that has given rise to the Boumediene decision and others in its area, is just how poorly the media has explained what is going on. Therefore, I have volunteered to step and and provide a simple, coherent and accurate explanation for what is going on.
In our system of government, every individual has the right to challenge the legality of government action. In simple terms, if the government does something that affects you in some fashion, you have the right to go to court and ask some judge “Hey, is this legal what they are doing?” There is no government action without judicial oversight.
The current President, however, has a different angle on things. He thinks that the President has certain “inherent” powers. An inherent power is one that is not specifically given to him in the text of the constitution but which is “implied” by the fact that he is President. He thinks that the President has the inherent power to identify people as enemies of the United States and to do with them as he sees fit. And, he thinks, no court anywhere can say anything about it. Furthermore, since he sees this power as being granted by the Constitution (not in actual words, mind you, but impliedly), he believes that Congress is powerless to limit that power.
These ideas are essentially crackpot ideas, at least from anybody who takes the law and the Constitution seriously. There are, however, an awful lot of people who do have authoritarian tendencies, and many of them go to law school and some become judges. To these people, the President’s theories make perfect sense, just like tax deductions for beer and wine purchases would make perfect sense to an alcoholic.
I am digressing somewhat, because the Supreme Court has not yet had to address the President’s “inherent powers” theories. Thanks to the spineless attributes of politicians, notably members of Congress, the President has been able to get laws passed giving him all the powers that he thinks he has anyway. In 2006, After the Supreme Court ruled that he had to follow the Geneva Convention, he got Congress to pass a law that basically said that the President can identify anybody he sees fit as an “enemy” of the United States and hold that person, basically forever, and that no court has the power to judge whether the President is acting legally or not.
This was an outrageous law. Utterly contrary to everything this Country stands for, but it was proposed immediately before the 2006 election and so all members of congress (of both parties) that were facing reelection automatically voted for it, lest they be deemed “weak on terrorism.” I am letting you, dear reader, know that you, as an intelligent human being, have the inherent authority to slap in the face anybody who utters that ridiculous phrase “weak on terrorism.”
Yesterday’s decision ruled simply that everybody, even accused terrorists, have the right to ask a Court whether what the government is doing is legal. That right is in the constitution, and Congress cannot take that right away.
So that’s the small wow. What’s the BIG WOW you might ask?
The BIG WOW is that four Supreme Court justices thought otherwise. Four Supreme Court justices thought that it was perfectly ok for the government to imprison individuals, some of whom have been literally kidnapped, and hold them for years, six years at last count, and that those individuals have no right to challenge the legality of the government’s actions. And these are the guys who are supposed to be the last line of defense of our liberties? That, to me, is a BIG WOW.