No King George


Date: 2008-06-20 02:41:10

not to forget the good news:… Editorial June 13, 2008, 9:37PM

No King George U.S. Supreme Court preserves freedom by backing the Constitution’s ban on arbitrary imprisonment Copyright 2008 Houston Chronicle After winning independence from a British monarch, King George III, who had no compunction about arresting Colonial opponents without legal justification, the Founding Fathers made sure the Constitution of the newly created United States would prevent future leaders from violations of civil liberties. Habeas corpus, the guarantee that those who are imprisoned by government can challenge the action in a duly constituted court, is specifically cited in the pre-Bill of Rights Constitution, which declared that the writ could be suspended only in cases of rebellion or invasion. More than two centuries later, President Bush and the tactics his administration used to conduct the war on terror have put that commitment in jeopardy. Fortunately, another legacy of the Founders ­ the system of checks and balances between the executive, legislative and judicial branches of government ­ has come to the rescue. This week’s ruling by the Supreme Court in Boumediene v. Bush establishes that prisoners seized by the United States on suspicion of terrorism have a constitutional right to contest their accusers in federal court. It reaffirms one of the basic underpinnings of American democracy and is a historic victory for those who are committed to maintaining our civil liberties in the face of attacks from both international terrorists and those in government who would ignore the law in pursuing them. For six years the Bush administration has contended that habeas corpus does not apply to terrorism suspects seized overseas and brought to Guantanamo Bay, Cuba. That site was chosen for the express purpose of placing the detainees, now numbering 270, about half of them Yemeni citizens, beyond the reach of U.S. jurisprudence. In response to detainees who demanded access to U.S. courts, the Supreme Court four years ago ruled that federal courts did have jurisdiction over Guantanamo Bay and other locations outside the United States where the government has functional control. Two years later the high court stepped in again, finding that military commissions set up to determine whether detainees were unlawful combatants lacked legal authorization. When Congress then passed legislation authorizing the tribunals as well as stripping federal courts of jurisdiction, it posed a constitutional question. Did the executive and legislative branches have the right to deny habeas corpus to detainees and deny federal courts jurisdiction over their cases? With an eloquent opinion citing the history of the writ and the importance the Constitution’s writers assigned it, Justice Anthony M. Kennedy, on behalf of a 5-4 majority, delivered a resounding no. Kennedy quoted Alexander Hamilton’s explanation in Federalist Paper No. 84 why providing a judicial forum to detainees was vital to preserving limited government: “Confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” Capable intelligence agencies and military forces are not the only considerations in defending national security, wrote Kennedy. “Security subsists, too, in fidelity to freedom’s first principles. Chief among those are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.” In dissenting, Chief Justice John Roberts accused the majority of “judicial activism.” To the contrary, the ruling faithfully follows the path blazed by the nation’s Founders and reaffirms the bedrock principle of our democracy: protecting the rights of the individual and limiting the power of government. As the majority opinion states so well, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

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