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Academic

: Essentially Contested America

Judicial Supremacy or Executive Supremacy: Which Should Prevail in the Gitmo Cases?

By Robert Justin Lipkin

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Check out the following op-ed piece in the Wall Street Journal: "Last week's Supreme Court decision in Boumediene v. Bush has been painted as a stinging rebuke of the administration's antiterrorism policies. From the

celebrations on most U.S. editorial pages, one might think that the court had stopped a dictator from trampling civil liberties. Boumediene did anything but. The 5-4 ruling is judicial imperialism of the highest order. . . . Boumediene should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court. Academics used to complain about the Rehnquist Court's "activism" for striking down minor federal laws on issues such as whether states are immune from damage lawsuits, or if Congress could ban handguns in school. Justice Anthony Kennedy -- joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer -- saves his claims of judicial supremacy for the truly momentous: striking down a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less. . . . First out the window went precedent. Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge. Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention." For more click here.

If there ever is a justification for judicial supremacy, this seems to be it. The Constitution is designed to protect minorities from the tyranny of the majority, and there can be no more loathsome minority than the detainees at Gitmo. What kind of republican democracy would permit anyone from having no recourse when caught within the clutches of the state? The writ of habeas corpus is a fundamental right of any civilized society. When the state incarcerates anyone, no one has any civil rights or liberties, if disallowed the capacity to have the state formally explain why that individual is incarcerated. This doesn't mean that the incarcerated individuals will be freed just heard. Oh yes, the innocent incarcerees ultimately will be (should be) freed. Fear-mongering about the loss of a city by a freed detainee is antithetical to the very idea of a free society.

Here's the case in a nutshell, a humorous nutshell to boot.

To ignore the Constitution when times get tough shows little fidelity to the document that first established republican democracy as a beacon for those under the heel of the world's brutal tyrannies. Ultimately, this issues has little to do with the humanity of the detainees (although no humanist can reject this reason for protecting habeas corpus); rather it has everything to do with what we stand for. Does this put us at risk? You bet it does, and it always will. Is the risk worth it? You decide!

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Full post as published by Essentially Contested America on June 20, 2008 (boomark / email).