Wednesday, June 13, 2012

Undermining the rule of law

The United States Constitution makes very little mention of citizens. It mandates that our elected representatives be citizens and that the President and Vice President are citizens, but beyond stating that all "other persons" counted as 3/5 of a citizen.

The blueprint of our representative democracy states, in Article I, Section 9, that:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
One of the biggest fears of the Founding Fathers was the suspension of the Great Writ. There is no mention anywhere in the Constitution that only citizens of the United States are entitled to use a writ of habeas corpus to get into court. Anyone held in any county jail or state prison can file the writ to get his day in court (unless of course the government has decided they want to kill you and restrict your time to file the writ to one year).

The only time the Great Writ was suspended was during the Civil War when President Lincoln suspended it due to the rebellion.

But on Monday the US Supreme Court effectively suspended the writ for anyone held as a so-called enemy combatant in our government's War on the Constitution Terrorism. As Scott Greenfield reminds us, back in 2008, the men (and woman) in black ruled that the detainees in Guantanamo were entitled to the use of the writ to get their day in court.

Those who had been held without being charged lined up and filed. Trial courts granted the writs and ruled, in many cases, that the detainees were being held illegally. One of those detainees was an American citizen, Jose Padilla, who was held in a US Navy brig in Charleston, South Carolina.

While trial courts were issuing rulings upholding the rule of law, the DC Court of Appeals was doing its best to slice and dice the Constitution. Every case that the government appealed was reversed by the appellate court and the standards that a detainee would have to meet to gain his release were raised to a level no one could achieve.

And when the Supremes had their chance to let the appellate court know that it meant what it said, they punted. One could argue that no one's right to file the Great Writ has been suspended - only that the bar for relief has been raised higher for those whom the government says are the bad guys. But, when the raising of the bar effectively denies each and every detainee of their right to review, the right to file the Great Writ has been suspended.

And the Supreme Court is more than happy to sit back and allow the most conservative appellate court in the nation to thumb its nose at it. The Supremes could have but some teeth into their earlier decision, but why bother? It's not like anyone's marching in the streets demanding that the detainees get their right to review. It's not like anyone's going out on a limb arguing that our national principles demand that these men be released from illegal detention.

No one's going to take up the flag of their cause. And that's exactly what the rule of law is supposed to protect - the rights of the unpopular.

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