Progressive World Review

In a landmark five to four decision, the Supreme Court ruled that the detainees of Guantanamo have the right to appeal in U.S. civilian courts, their indefinite detention.  The Bush administration has argued from the beginning that the detainees are “enemy combatants” and therefore are not afforded the rights that most of us take for granted including habeas corpus.

The court’s decision underscored the importance of habeas corpus, recognizing the fundamental importance to liberty, the right to face your accusers and challenge your imprisonment,

The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom.

Freedom from arbitrary imprisonment is a right established by the Magna Carta and as the court noted, was written into the Constitution even before the Bill of Rights,

A brief account of the writ’s history and origins shows that protection for the habeas privilege was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights; in the system the Framers conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause. That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion.

It’s impossible to overstate the importance of the freedom from arbitrary imprisonment.  Considered one of the most tyrannical powers one could possess, Patrick Henry had this to say about it, (h/t Glenn Greenwald) (emphasis original)

Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings — give us that precious jewel, and you may take everything else! . . . Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.

“Suspect everyone who approaches that jewel,” such as our president and the four dissenting justices, Clarence Thomas, John Roberts, Sam Alito and Antonin Scalia.

Whenever there’s a decision that goes against the right it’s only a matter of time before accusations of “judicial activism” are leveled no matter how well grounded in Constitutional law or legal precedent the decision is.

But what makes this decision so interesting is how Scalia, in writing for the dissent, demonstrates precisely what judicial activism is.  Judicial activism is defined by the practice of making a decision based on the desired outcome rather than the legal merits of the case.  In Scalia’s opinion he devotes an entire section to exactly that, the outcome of the decision as he sees it, (h/t Think Progress) (emphasis original)

“America is at war with radical Islamists. … Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq.”

“The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.”

“The Nation will live to regret what the Court has done today.”

His opinion includes as well, actual legal arguments but that an entire section is devoted to these “outcome” arguments speaks volumes about Scalia’s value as a Supreme Court justice.

–Paul Wilden

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