What the majority refer to as a conversation between the branches, is in reality a contest with respect to the separation of the branches. In this decision, the majority are dead set on declaring unconstitutional an act of Congress declaring that the judiciary may not entertain habeas corpus petitions from detainees at Guantanamo Bay Cuba. The prime motivation is transparent: that Congress shall not tell the Judicial Branch what it can and cannot do.
This is the fourth major decision with respect to detainees. In all four cases, the prime motivation of the majority appears to be to reject Congressional intrusion into the prerogatives of the judicial branch. Previous cases were Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Rasul v. Bush.
The problem with this "conversation" is that the result is poor law and poor policy.
This outcome is not restricted to the actions of the Court either. Congress' actions are just as weak.
These are unique circumstances brought on by the unique times in which we live and the unique status of the Guantanamo Naval Station in Cuba. It is precisely in these circumstances that we need our various branches of Government to develop policy based on principle. But that principle ought not to be "stay out of our business" separation of powers arguments. Instead the principles that should be honored, and developed if needed, are those that most important. What policy furthers the cause of liberty and freedom? What policy furthers the ability of the Executive to transform warfare into lasting peace?
Principle and Policy doubts that entertaining habeas pleas from the detained in the U.S. court system is the optimal policy. The dissent of the Chief Justice is persuasive on this point. If results in the detained being released to take up arms against our forces or our citizens, then it clearly is suboptimal. The Principal now visible is this:
Peace isn't just the absence of conflict it is the presence of Justice, but arguments over the separation of powers bring neither Peace nor Justice.
3 comments:
As I wrote on my blog, McCain could - if he goes further - win the election on this issue alone. All he has to do is say that if he is elected, he will ignore this Supreme Court decision. He could use the spectre of Osama Bin Laden and his lawyers in Federal courts to beat Obama like a rented mule.
I agree that this issue is one that can differentiate the candidates and works to McCain's favor. I doubt that stating an intention to ignore it would be an intelligent move. This is finally a country of laws and the President is duty bound to obey the law. However, he could sponsor in the Senate a Constitutional Amendment to prohibit the courts from hearing habeas corpus pleas from non-U.S. citizens located outside of the Untied States and her territories.
The problem with the constitutional amendment process is that the court is free to interpret the amendment any way they want, and to effectively nullify it, as they have other parts like the Commerce Clause.
That is why this is such a perfect issue: McCain can say that he will ignore this one, single ruling. A very limited declaration that would leave their authority on domestic matters in place. The left would have to argue for an absolutist, extreme point of view that the "Constitution is whatever the court says it is - no matter what." I think he could win on that.
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