- My commentary on the Opinion itself is here.
- Here is a press release on the decision.
- Here is the opinion itself.
*This is an essay I wrote just a few months before the desicion, based mostly on "Hamdi v. Rumsfeld." Enjoy! Little did I know the Supreme Court would agree so much.
Recently, the Supreme Court has confronted the issue of whether it should try foreigners who were captured overseas by the U.S. military in the ongoing War on Terror. Some of the specific cases have been appalling, even to the most hawkish commentators. The most important case thus far has been Hamdi v. Rumsfeld. Here is my commentary on the issue.
It is undisputed that governance under the U.S. Constitution is based on the philosophical concept that no man or department should make the law, execute the law and adjudicate disputes of the law all at once. To do so would be absolute, arbitrary unchecked power. Governments which lack checks and balances of this sort have many names: fascist, totalitarian, monarchy, and law of the jungle to name a few. The United States has not fallen so far as to justify such terminology yet, but has adopted many ideas which are dangerously similar to the policies of such governments. Alexander Hamilton wrote in Federalist Paper number 82, “[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny." He then went on to use the word "tyranny" consistently as he described the reason for the Writ of Habeas Corpus.
Hamilton then quotes Blackstone (a judge, who's work, the U.S. Constitution is largely based on) as saying, "To bereave a man of life . . . or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but 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.’ And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act..."
The American tradition on this issue is clear. The question of whether it is good thing (i.e. whether we should retain that tradition) is a separate issue. We should not wait for millions to suffer, but rather we should call it like we see it when merely one individual levies a genuine grievance. Many argue that the erosion of such checks and balances within the U.S. system is not a bad thing, but is necessary for either what Republicans call safety or what Democrats call “progress.” I say bolonga.
One of the most important principles of checking and balancing power is the writ of habeas corpus. Habeas corpus dates back to at least the 13th century, and in principle, much further. The first codification was in 1679. Bascially, we can all agree that this is a very old, and important part of western civilization. The idea is that if a person is being held in a cage, they have a right to have their detention examined by a neutral third party, usually a judge, to determine whether it is justifiable. This has always been considered a natural and fundamental right of human beings.
Few Americans know what it is like to experience truly arbitrary power. It is something we simply do not have in this country for the most part. Our nation is founded by people who experienced it though. In fact, it could rightly be said that preventing such power is the sole and exclusive purpose of the U.S. Constitution. The concept of “no taxation without representation” is a reminder that the founders were appalled by the fact that taxes could be levied upon them without any recourse. What if England had done more than tax them? What if the local governors had begun to imprison John Adams and Ben Franklin and the others, labeling them “enemy combatants” and not allowing them to challenge their detention? After the destruction of the Constitution that has occurred over that last century, many had hoped that this principle may be the remaining philisophical accomplishment of our country.
Now, at Guantanamo Bay Cuba, the President of the United State asserts that he may capture people on foreign soil and imprison them without check. Traditionally in the U.S., the province of foreign affairs is vested almost exclusively in the executive so that the country may speak with one consistent voice. Courts have been instructed to give the President considerable discretion in this area. However, it cannot be asserted that the President may act without any accountability to the other branches of government, as this would undermine the very structure and purpose of our three-branch governance. Furthermore, this would allow for moral wrongs to be committed which undermine the moral high ground which gives the U.S. the necessary moral standing in order to continue it’s twentieth century foreign policy of spreading goodness.
How audacious are we who assert that our generation has evolved to become so advanced and progressive beyond our fore-fathers, that absolute power no longer corrupts absolutely. U.S. Courts exist to balance the power of our government and to prevent the evil of arbitrary, unchecked power. If they do not exist for this role, than they exist for nothing. To assert that this check on power is no good when one branch extends itself beyond our borders, is to tell the other branch that they are to relinquish that for which it exists. This assertion fails to recognize that (despite the clear differences in power) the three branches are co-equal, and none are entirely subordinate to another – they are each subordinate only to the Constitution. We must also remember, that the court is the only branch which is not subject to majoritarian influences, which makes their role all the more important.
There is no power that one branch has that is not overlapped in some substantial way by another. So now one branch supposes it can tell another that it can take the tax dollars of Americans, enlist their son and daughters, the products of their labor and unilaterally exert powers of force and lethality across borders without a check from one of the other branches. This is said as if the Court is not a co-equal branch of government.
Although the Court’s role in foreign affairs is different to that of the executive, the executive may not use any justification to act entirely unchecked by the other two branches, with the exception of short-term emergencies. The question is: can the U.S. courts try foreign individuals in U.S. custody during an admittedly unending war. The answer is emphatically yes, in fact resolving disputes is the court’s exclusive province, just like foreign policy is the President’s. Where one branch extends, the others follow in their appropriate way. The so-called “War on Terror,” by President Bush’s own admission, is not a war at all in the conventional sense. It is a non-ending conflict used to justify military action against non-state actors. It is declared against an enemy that has always existed and will always exist.
In foreign affairs, the President is the sole chief actor in almost every way. However, he cannot fund his own activity, or act without at least some consent of Congress. In this area as well, the Court does not exist merely for cosmetic purposes, but rather to be the final vanguard of the Constitution. Every aspect of the Constitution is to be protected, especially it’s purpose in reigning in the forces of arbitrary power. The court does this by adjudicating disputes, which gives rise to the power of Judicial Review, because the Constitution is the supreme law of the land. The President does not have this power. It would be an arbitrary excursion of power for one person to order acts of war, and detain individuals without any check whatsoever. When Americans are involved, and a dispute needs to be adjudicated, the Court exists for this purpose.
The courts must take these cases and adjudicate them. If an American is involved, Congress has not acted or has acted inappropriately, and there is no better options, then the Court must be the Court of last resort to check the power of the other two branches. And if the other two branches will ignore the rulings, so be it. History records that the failure of the judiciary is the failure of a nation. This leads to disaster of monstrous proportion. History should not record that the U.S. Supreme Court failed in it’s duty and stood by and did nothing while the executive undermined it’s power.
And to those who would say that this view is unpatriotic or that we are standing in the way of the defense of our nation: the Court should not be subject to the modern propaganda techniques, or political interest group influence, or gang rule. That, above all is their responsibility. They should not subject to the influence of anything whatsoever except the U.S. Constitution. They are it’s final guardian. This document was the culmination of hundreds of years of philosophy and practical experience. Although it’s realities remind mankind of our fallibility, it’s ideals represent the best methods man has developed to govern itself – most notably through division of power. At no point in American history have we achieved the ideal. But that is our goal, and that is our journey. The Court’s charge is to keep us on that path, or be destroyed in doing so.
History has recorded time and time again the acts of those who commit evil under the guise of national self defense. The pattern is well known to historians: they invade the privacy of individuals, disempower them, instruct them to rely on police and government, take away their God-given right to defend themselves, scapegoat minorities, create vague legal justifications that can be defined by the enforcers, justify going around the law, or redefining the law, and all in the name of self-defense of an loosely defined threat or crisis.
In regards to the issue of saftey, the fact is that every nation has faced terror threats throughout all of history. The Romans soon discovered, as have every other occupying power in history, that one nation cannot forcefully and peacefully occupy another. There will always be “insurgents” and “terrorists,” who will be called “freedom fighters” at home. Just like American’s of today, the Romans and British and all the others professed good intentions. Again, I would like to stress that I am saying that present activity could open the floodgates toward greater evil, not that I think the U.S. has reached this point yet.
The middle east is analogous to how Thomas Jefferson described slavery; its like holding a wolf by the ears, you know you shouldn’t have it, but you don’t dare let it go. Technology has made terror more dangerous than before. However, considering the vulnerability inherent in any society to suicide terrorism (even Israel has not figured out how to prevent it), we must ask this: does it make more sense, in fighting terror, to be consistent in applying our values to all people or to make secret exceptions to our professed values without explanation or checks and balances? Recall that all the while, we say that we seek to spread American values to these people. Clearly, we send a much stronger signal to terrorists and those who might join them, when we show throug
h our actions that we do not make exceptions to our values.I would also challenge those who question the “conservatism” behind this view. By all means, I consider myself a conservative. I know of no conservative principles that support the detention at Guantanamo Bay, and if there are any, I would love to hear them. I would remind my conservative friends that both O'Connor and Rehnquist voted in the majority in Hamdi v. Rumsfeld, and also conservative leaning Kennedy. The outcome in this case reflected my views.
I thought that even “law-and-order” conservatives still believed that a trial by a neutral tribunal was the best way to achieve justice. Would a neutral tribunal be any less prudent than the President? Furthermore, even neo-conservative leaders such as Paul Wolfowitz have acknowledged that the detention without challenge has undermined U.S. credibility.
The fact is that free nations are safe nations because free nations defend the rights and privacies of individuals anywhere; rather undermining them. This is conservatism at it's finest. "Law and order" conservatives know that law and order applies to the government just as much as civilians. Furthermore, our tradition and legal history are clear that we stand on the principle that a person’s rights come from our creator, not our government.
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