YALLA VOTE ‘08 Our Voice. Our Future.

It took only a few hours for yesterday’s U.S. Supreme Court decision in Boumediene V. U.S. to become a political football, with partisans on each side talking past one another with accusations exaggerated and terrible.

That is sad.

Rule of law — and specifically, the notion of the executive being bound by the law, the writ of habeas corpus -– these things are in the basic DNA of the United States. (Didn’t ANYONE watch that HBO special on John Adams?) This was about civil rights in the most basic sense. No the folks at Guantanamo Bay aren’t U.S. citizens, but because they are under the control of the U.S. government they are have access to U.S. courts for the purpose of challenging their detention.

The U.S. argument in Boumediene was one we have heard before. In essence it boils down this proposition: “[X] is a bad guy, and he is where he needs to be – detained.” In other words, individuals can be detained by U.S. military order and held indefinitely, because the courts lack both the power and the expertise to second guess military judgments.

In the post-9/11 world, it has been asserted, everything is different, including the law. We must adapt, the argument goes. Outdated notions of privacy and cumbersome barriers to quick and decisive action against terrorism must yield to the new world of wiretaps without warrants, national security letters, terrorist watch lists, and executive detention of “bad guys.” From the very first days of this brave new world, Arab Americans were among the most vulnerable to the new police powers, making up a disproportionately high percentage of the hundreds detained on material witness warrants that September.

The claim is not an original one, as court cases that grow out of each conflict in our nation’s history have shown – with each one having an ethnic group or ideology that is seen as a threat and whose civil liberties, consequently, are challenged. Each generation, it seems, must fight anew to preserve basic civil rights. And the most important aspect of the Boumediene decision, in this sense, is that it another chip in the foundation of one the most dangerous U.S. Supreme decisions: Korematsu v. U.S.

At issue in that case was whether or not the military order excluding Japanese Americans from the West Coast in the spring of 1942 was constitutional. The Korematsu court found that, “because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this, [w]e cannot…now say that, at that time, these actions were unjustified.”

The central element of the most-often quoted passage from yesterday’s opinion in Boumediene notes: “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.” More significantly, perhaps, the court explains what this means a few paragraphs earlier: “Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.”

Yesterday Justice Scalia took the unusual step of noting, in his dissenting opinion, the political and military consequences of the decision – something that is specifically beyond the purview of the law and its judges – and opined that more Americans would die as a result of the majority decision.

More powerful (and of better legal reasoning) was the dissent of Justice Jackson in Korematsu: “A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle…. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. …A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. …The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.”

Indeed, it is for this reason that Japanese Americans stood shoulder to shoulder with Arab Americans in the September 2001, because that community knew what we were in for. Thankfully, the court has consistently upheld the principle of the rule of law that it did not uphold during World War II. In Rasul v. Bush, Hamdi v. Rumsfeld, and now Boumediene v. U.S., the U.S. Supreme Court has rejected arguments of military necessity and executive power in wartime to assert the principle of habeas corpus that, as was pointed out in yesterday’s opinion, was so central to the Framer’s conception of the Constitution that it is in the body of the document itself, antedating the Bill of Right.

June 12, 2008 was a great day in U.S. history. That is something that should not be lost in the political posturing in the coming election.

Link to the decision: http://www.scotusblog.com/wp/wp-content/uploads/2008/06/06-1195.pdf