I read through a chunk of the Supreme Court’s ruling on Boumediene v. Bush et al. for my insomniac entertainment last night. The hushed silence outside my window in the verdant northwest corner of Manhattan felt appropriate as I grasped the stunning import of this landmark lifebuoy to the remnants of the Magna Carta and 800 years of Anglo-Saxon struggle against arbitrary arrest.
The remarkable thing about the language of Boumediene is that it is a direct finger-wag in the face of the legislative, rather than the executive branch, and a courageous reminder to the Black Hundreds on Capitol Hill that they, not Rush Limbaugh or John Yoo and not Barack Obama either, still have the power to say ‘what the law is.’
We hasten to blame the wild men in the White House orbit for the abuses being practiced against defenseless detainees in Guantánamo and other dungeons we haven’t even heard of yet. But we seldom stop to consider that it was our elected representatives, including all the major presidential candidates, who seconded these crimes by attempting to tell the judicial branch to butt out in the notorious Detainee Treatment Act of 2005 and the follow-up Military Commissions Act of 2006.
The five justices remind these 535 election whores that habeas corpus was considered so important to the founders as the basis of the rule of law that it is incorporated directly into the language of the Constitution itself, not the subsequent Bill of Rights. In fact, it is not called a ‘right’ at all but a ‘privilege’, its own special category.
If the policing power of a state, be it the local earl, a jailer, a sheriff, an elected official or Jesus Christ himself descending from the firmament on a heavenly steed, can arbitrarily place a person behind bars and throw away the key, all other promises of rights and liberties become meaningless verbiage.
All persons in a state ruled by laws, including the most repugnant criminals, must retain access to a habeas writ; if they do not, the rest of us are at risk. Demagogues and tyrants understand this and easily cow fearful legislators, so at crucial moments only an independent judiciary will dare to defend us. So far, we still have one.