Media, culture, and politics from an aesthetic-materialist's perspective.

Monday, June 23, 2008

Habeas Lives

Last week the U.S. Supreme Court split 5-4 and declared unconstitutional the Bush Administration's refusal to grant detainees at Guantanamo Bay the right to go to federal court to challenge their continued detention. The decision has been seen as a crucial victory in the piecemeal process of reestablishing of the rule of law in this country, where George W. Bush and a Republican-controlled Congress has made a mockery of the Judiciary branch of government to fight the so-called "War on Terror."

The Court's decision, Boumediene v. Bush, split along familiar lines, with the staunch conservatives, Justices Roberts, Scalia, Thomas, and Alito, making up the dissenting four. Anthony Kennedy, as is usually the case in the composition of the current Court, was the crucial swing vote who sided with Justices Stevens, Souter, Ginsburg, and Breyer. In a move seen as fortifying their position over and against the dissenters, the ranking majority opinion Justice, John Paul Stevens, assigned the writing of the Court's opinion to Kennedy himself.

The only points I'd like to stress about this victory are that 1) the decision upholds habeas corpus as an uncompromisable constitutional right, which means that 2) no amount of fear-mongering and threat-issuing on the part of our government can extinguish a person's ability to question the government's policies and actions, which brings us back to the fact that 3) the preservation of that kernel of freedom which is preserved in habeas corpus is one of the touchstones not only of American law but also of American civil society. Between preserving that right and denying it in the first instance is the thin line between nominal democracy and actually existing fascism.

Anyone who reads this important decision cannot help but notice that while the majority speaks mostly of the rule of law, the preservation of our rights, and what the Constitution means in these exceptional times, the dissenting opinions of Justices Scalia and Roberts ring of partisanship, politicking, and the very fear-mongering that the Bush Administration has been guilty of since 9/11. Roberts says that the Court's opinion will open it up to "charges of judicial activism." As his extreme deference to the Executive branch of government (and, when conveniently in place, a Republican-controlled Legislative branch) has consistently shown, it's utterly impossible for this Chief Justice to conceive that the President himself has been the activist here, brushing aside the law in a fearsome consolidation of statist power.

In the same vein but in a tone befitting his hysteria, Antonin Scalia pipes in with, “[The decision] will almost certainly cause more Americans to be killed... The nation will live to regret what the court has done today." The Justice's emphasis in his dissent isn't so much on the law but on the Executive's claims that detainees are terrorists or terrorists-in-waiting, and thus have no right to habeas whatsoever. Scalia's ludicrous scenarios play out in the blighted field of his imagination, as they have done with so many people in this country since 9/11.

The Supreme Court is barely hanging on to a conscientious, pragmatic majority these days, and if the likes of Roberts and Scalia had their way -- if, that is, a President McCain would be able to replace Justices Stevens, Ginsburg, and possibly Souter with three candidates of his choosing -- then we can look forward to a government that pays lip service to checks and balances, a civil society that legitimates its Orwellian measures of control through its own terroristic (psychological or otherwise) devices.

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