Legal Commentary

A Quick Reading of Boumediene

By TChris

Three passages from the majority opinion's conclusion in Boumediene are worth your time (so is the rest of the opinion, but weighing in at 70 pages, it takes some time to digest):

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. ...

[more ...]

Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek. ...

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.

Remember that this was a 5-4 decision, that Justice Stevens will not live forever, and that John McCain would likely nominate as his replacement someone in the mold of Chief Justice Roberts or Justice Alito, both of whom dissented from the notion that indefinite detention should be subject to judicial review. The presidential election will have enormous consequences to our nation's commitment to the rule of law and to the constitutional values of freedom and fairness that have served us so well for so long.

Full post as published by TalkLeft on June 12, 2008 (boomark / email).