McCain Parrots FOX Line on Habeas, Attacking Judges in the Name of National Security

After the Supreme Court handed down its long-awaited opinion upholding habeas corpus rights for the Guantánamo detainees, I was invited to appear on "The O'Reilly Factor" with guest host Laura Ingraham. Although she is a lawyer and former law clerk for Justice Clarence Thomas, Ingraham has no use for our judicial branch of government, noting that the justices are "unelected." Indeed, she advocated that Bush break the law and disregard the Court's decision in Boumediene v. Bush:

Marjorie, I was trying to think to myself, look, if I were President Bush, and I had heard that this case had come down, and I'm out of office in a few months. My ratings, my popularity ratings are pretty low, I would have said at this point, that's very interesting that the court decided this, but I'm not going to respect the decision of the court because my job is to keep this country safe.

What did the Court decide that so incensed Ingraham (who has just been rewarded for her "fair and balanced" views with her own show on Fox News)? Will this decision really imperil our safety? And will Boumediene become an issue in the presidential election?

The Supreme Court held in a 5-4 ruling that the Guantánamo detainees have a constitutional right to habeas corpus, and that the scheme for reviewing "enemy combatant" designations under the Combatant Status Review Tribunals is an inadequate substitute for habeas corpus, a result I predicted in a December 3, 2007 article.

A constitutional right to habeas corpus for Guantanamo detainees

Article 1, Section 9, Clause 2 of the Constitution is known as the Suspension Clause. It reads, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." In section 7(a) of the Military Commissions Act of 2006, Congress purported to strip habeas rights from the Guantánamo detainees by amending the habeas corpus statute (28 U.S.C.A. § 2241(e)). In Boumediene, the Court held that section of the Act to be unconstitutional, declaring that the detainees still retained the constitutional right to habeas corpus.

Justice Kennedy, writing for the majority, reiterated the Court's finding in Rasul v. Bush that although Cuba retains technical sovereignty over Guantánamo, the United States exercises complete jurisdiction and control over its naval base and thus the Constitution protects the detainees there. Kennedy rejected "the necessary implication" of Bush's position that the political branches could "govern without legal restraint" by locating a U.S. military base in a country that retained formal sovereignty over the area. In his dissent, Chief Justice Roberts flippantly characterized Guantánamo as a "jurisdictionally quirky outpost."

Kennedy worried that the political branches could "have the power to switch the Constitution on or off at will" which "would lead to a regime in which they, not this Court, say 'what the law is.'" "Even when the United States acts outside its borders," Kennedy wrote, "its powers are not 'absolute and unlimited' but are subject 'to such restrictions as are expressed in the Constitution.'"

Thus, Kennedy observed, "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers." Indeed, habeas corpus was one of the few individual rights the Founding Fathers wrote it into the original Constitution, years before they enacted the Bill of Rights.

"The test for determining the scope of [the habeas corpus] provision," Kennedy wrote, "must not be subject to manipulation by those whose power it is designed to restrain." It is such manipulation that Laura Ingraham would perpetuate. It was a Republican-controlled Congress, working hand-in-glove with Bush, that tried to strip habeas corpus rights from the Guantánamo detainees in the Military Commissions Act. The Supreme Court has determined that effort to be unconstitutional. Fulfilling its constitutional duty to check and balance the other two branches, the Court has carried out its mandate to interpret the Constitution and say "what the law is."