In a historic — and Bush-shattering 5-4 vote — the Supreme Court of the United States of America invoked its inherent authority to decide the law of the land.

With prisoners being held indefinitely at Guantanamo and with USS warships being used as Prison Hulks, the Supreme Court’s decision arrived just in time to resurrect the original writ of Habeas Corpus as a primary tenet of the law in American jurisprudence.

Today’s New York Times celebrated the granting of Habeas Corpus to Guantanamo detainees:

For years, with the help of compliant Republicans and frightened Democrats in Congress, President Bush has denied the protections of justice, democracy and plain human decency to the hundreds of men that he decided to label “unlawful enemy combatants” and throw into never-ending detention.

Twice the Supreme Court swatted back his imperial overreaching, and twice Congress helped Mr. Bush try to open a gaping loophole in the Constitution. On Thursday, the court turned back the most recent effort to subvert justice with a stirring defense of habeas corpus, the right of anyone being held by the government to challenge his confinement before a judge.

The court ruled that the detainees being held in Guantánamo Bay, Cuba, have that cherished right, and that the process for them to challenge their confinement is inadequate. It was a very good day for people who value freedom and abhor Mr. Bush’s attempts to turn Guantánamo Bay into a constitutional-rights-free zone.

The Washington Post also hailed the victory for the Original Writ:

THE SUPREME Court ruling yesterday that those held at Guantanamo Bay have a constitutional right to challenge their detentions in federal court is a welcome victory for due process and the rule of law. It completes a signal and totally avoidable failure by President Bush, who will leave office with the nation’s regime for holding al-Qaeda combatants in shambles. And it leaves unanswered many questions that will undoubtedly trigger more litigation.

A 5 to 4 majority of the court correctly concluded that habeas corpus, the ancient right to contest one’s detention, extends to those held at the U.S. Navy base in Guantanamo Bay. Although it only leases the property from Cuba, the United States exerts complete legal and military control over the base; those held there have nowhere to challenge their detentions other than U.S. courts.

To have forbidden the detainees access to those courts would have left the executive branch almost unfettered power to hold people indefinitely — a proposition that is untenable. “To hold that the political branches may switch the Constitution on or off at will,” wrote Justice Anthony M. Kennedy for the majority, “would lead to a regime in which they, not this Court, say ‘what the law is.’ “

Not everyone in the Bush administration was joyous over the ruling:

WASHINGTON (AP) — Attorney General Michael Mukasey said Friday the Supreme Court ruling on Guantanamo detainees would not affect the trials of enemy combatants. A divided court ruled decided suspected terrorists have the right to go to federal court to seek their release from indefinite detention.

Speaking at a Group of Eight meeting of justice and home affairs ministers in Tokyo, Mukasey said, “I’m disappointed with the decision, in so far as I understand that it will result in hundreds of actions challenging the detention of enemy combatants to be moved to federal district court.”

Scalia played the terror card in going against the majority will:

“The nation will live to regret what the court has done today,” Justice Antonin Scalia wrote in a dissent, warning that the ruling “will almost certainly cause more Americans to be killed.”

The sad fact is that Americans are being illegally killed every day across the world — some in the name of terror, others in acting out missionary assignments, while others still die anonymous-by-intent in service to our country because they are doing the dirty work no one else wants to do and nobody wants on-the-record.

We cannot live in fear of our deaths at the hands of terrorists or every threat will be seen as deadly and in need of retribution and we are then controlled by our emotions and our fearful minds and not by the stony righteousness and icy power of our panopticonic United States Constitution.

If we truly are a nation of laws and not men — as both Barack Obama and John McCain believe in their shared, public, support for shutting down Guantanamo — then we have nothing to fear in granting any detainee anywhere proper access to our legal system.

Unless, of course, we have done something egregiously wrong in withholding their rights against their best interests as the will of the people and the welfare of a free nation found imprisonment in the fist of presidential lawlessness.

We can free ourselves from our national dismay by letting Habeas Corpus live for everyone — even the foreign, the undeclared and the alien detained — and let the process of law determine guilt or innocence and not the prevarication of a solitary man.

We become stronger as a country when we place our faith in the architecture of belonging drafted as by our founding fathers.

Our national identity demands the sovereignty of free people to decide their will as natively righteous beings.


  1. I think the vote was way too close for what was at stake. That’s the shocking part.

  2. Janna —
    The vote was way too close, you’re right! That’s why we need a democrat president. He will preserve the faithful majority while another republican will push us into the forever backward.

  3. Great phrase, Gordon! We’re in for more fights on Habeas Corpus if Bush tries to have his way. Nothing will happen until we have a new president anyway.
    If nothing untoward was happening on Guantanamo — the detainees would be here in the USA and not there.

  4. It was definitely a great day for freedom, huh? I agree the vote sure was close. I guess at least four want a president setting the law.
    Tim Russert died. Did you watch him on TV? He supported the habeas ruling. He talked about it on his show.

  5. I forgot to ask if there will be legislation to change the ruling somehow? Would that be bad. Does Bush have anything left?

  6. Yes, Anne, the vote was way to close for my liking. 5-4 is one mind away from an entirely different outlook.
    I loved Tim Russert. He was one of us. He had good, Midwestern, values even though he was from Buffalo. SMILE! I will miss him. He had all the guts and glory that every newsperson aspires to earn through good deeds and longing. He leaves a big, empty, space in his wake.

  7. Bush said he hopes to make legislative changes, Anne, but I don’t think he has the muscle to push it through congress any longer. His glory days are over.

  8. Is it too soon to call him a lame duck, or has GWB been one for the last 3 years?

  9. Color me confused. this article states that McCain sided with the four that voted against. He wants it shut down but thinks that giving the prisoners the right to contest being there is the worst decision in the history of the US?

  10. Gordon —
    I think he’s been a lame duck since Katrina. He never recovered from that ultimate bumble.

  11. When McCain was free to speak his own mind as a non-candidate — he was very strongly against staying in Iraq and said we had wasted “treasure and blood” by invading Iraq. He’s always been against Guantanamo.
    Now… he’s playing the Bush hand because, as the republican nominee, he has no other choice but to recant. It’s a sad and sorry thing and I’m sure it is tearing him up inside.

  12. Excellent developments, David! But 5-4 shows that all is still not well? Anyways, it’s always nice to see some wrongs being righted.

  13. I saw a great editorial cartoon the other day, Dananjay, with the 5 majority on one side holding signs celebrating freedom with a caption of “The Writs” and the 4 minority on the other side holding signs preaching terror with a caption of “The Half-Writs.”

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