The Grandeur of Justice
No sooner had the Supreme Court ruled yesterday in two cases involving detainees in the war on terror than the partisans were out with shrill denunciations of the Bush administration. "President Bush and Attorney General Ashcroft have wrongly asserted that their actions in the war on terror were lawful and within the scope of the Constitution," the executive director of the American Civil Liberties Union, Anthony Romero, said in a statement. "Today's decisions clearly repudiate that assertion and show that the Bush administration's war on terror has eroded constitutional rights and respect for the rule of law."
Well, that is one way of looking at it. We prefer to see the decisions as, rather than a condemnation of America, a validation of the grandeur of American justice. Sifting through the 145 pages of legal opinions in these cases, it was hard not to be impressed by the care that the American judicial system devotes to the rights of the enemy in wartime. The opinions are replete with footnotes and elaborate references to the Federalist Papers and to earlier cases under the British king, Charles I, and during the American Civil War and World War II.
One may differ with the outcomes of the cases decided yesterday, though we'd note that the court's actions yesterday did not free a single detainee. But the decisions and the dissents together struck us as American justice at its best. This is the American way — struggling painstakingly with the rule of law and historical precedent. Contrast it with the way of the Islamic terrorists — beheading American noncombatants without even a kangaroo trial.
Conservatives are voicing concern that the court's rulings will lead to a litigation explosion that could hamper the war on terror. That's a serious risk, especially in the case of Rasul et al. v. Bush, which applies to noncitizens detained at America's Guantanamo Bay Naval Base on Cuba and which may even be interpreted to apply to enemy prisoners held by America in Iraq or Afghanistan. The Rasul decision even allows the prisoners to forum-shop, meaning they may end up seeking out super-liberal judges in places like California.
But, as Justice Scalia points out in his dissent in Hamdi v. Rumsfeld — a dissent in which the conservative Justice Scalia was joined by a liberal, Justice Stevens — there are ways to deal with these risks within the constitutional framework. In the case of American citizens who are detained, Justices Scalia and Stevens note that the Constitution — article III, section 3 — provides for the crime of treason. The justices further note that the Constitution — article I, section 8 — provides "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."That clause resides in article I, the part of the Constitution that delegates the powers to the Congress. Habeas corpus is the right of a prisoner to ask the government to justify his detention to a court.
President Lincoln suspended habeas during the Civil War, on April 27, 1861. Then, as now, there were complaints, and the Supreme Court, in the 1861 case Ex parte Merryman, said the president needed congressional approval. As the Supreme Court recounted the events in the 1866 opinion in Ex parte Milligan, another habeas case, "the public safety required that the privilege of the writ of habeas corpus should be suspended. The President had practically suspended it, and detained suspected persons in custody without trial; but his authority to do this was questioned. It was claimed that Congress alone could exercise this power; and that the legislature, and not the President, should judge of the political considerations on which the right to suspend it rested."
So Congress passed a law on March 3, 1863, suspending habeas. And Lincoln did suspend habeas, citing the act, on September 15, 1863. The majority opinion in Ex parte Milligan said, "It is essential to the safety of every government that, in a great crisis, like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus."
Whether the events of September 11, 2001, constitute an "invasion" worthy of suspending habeas rights is a question for Congress. If our troops end up entangled in endless litigation as they try to win a war, it'd be an argument for Congress to act quickly. But as Americans debate the rights of prisoners in wartime, we can know that the actions of President Bush and Attorney General Ashcroft are well within the tradition of Lincoln. And that the framers of the Constitution, at the founding of America, understood in the first article — not even in an amendment, but in the first article — not only that the right of habeas was important enough to enshrine, but also that the public safety is important enough so that Congress may suspend the habeas right when required "in cases of rebellion or invasion."
