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Liberty and Security can be Reconciled

By Jonathan Simon

That is the best rhetorical take away point from Justice Anthony Kennedy's majority opinion in BOUMEDIENE v. BUSH No. 06?1195, decided yesterday 5-4.

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part
of that law.

Yes the constitution survives in extraordinary times, but if its to be a tool to surviving those times there has to be a positive role of law in creating security. It is here that Justice Kennedy moves strongly in a direction that has been emphasized by human rights lawyers for some time. Due process is security.

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.

Full post as published by Berkeley Jurisprude on June 13, 2008 (boomark / email).