George Will: Putting Reason Ahead of Partisanship

Sometimes I wonder what got into my head when I was a very young man and came under the influence of the pen of George F. Will. And then there are days like today when I read his column, and know exactly why I came under his influence. Today's column is entitled "Contempt of Courts," and Will demonstrates yet again why he is such an important political writer. He is a rare breed of conservative today: he actually puts reasoning ahead of partisanship.

John McCain has called the decision by the Supreme Court to prevent the executive branch of our government from unilaterally holding prisoners at Guantanamo Bay without so much as filing charges against them (let alone making the case) "one of the worst decisions in the history of this country." Will lists a whole series of cases, including the Dred Scott decision that supported slavery and took away all rights from African Americans, and wonders if McCain really things it is in the same league with those. He suggests that McCain's comments were not so much about the case as they were a political tactic bent on making the Supreme Court balance an issue in the campaign. Will writes:

The purpose of a writ of habeas corpus is to cause a government to release a prisoner or show through due process why the prisoner should be held. Of Guantanamo's approximately 270 detainees, many certainly are dangerous "enemy combatants." Some probably are not. None will be released by the court's decision, which does not even guarantee a right to a hearing. Rather, it guarantees only a right to request a hearing. Courts retain considerable discretion regarding such requests. As such, the Supreme Court's ruling only begins marking a boundary against government's otherwise boundless power to detain people indefinitely, treating Guantanamo as (in Barack Obama's characterization) "a legal black hole." And public habeas hearings might benefit the Bush administration by reminding Americans how bad its worst enemies are.

Will is far more gracious to the far right's response to this decision than I would be. He says that it is something reasonable people can disagree about. He admits that there is merit to Chief Justice Roberts' concerns that the decision creates more ambiguity than clarity. For example, does this decision mean that while the Bush Administration can't run concentration camps at Guantanamo, it can run secret prisons around the world in areas completely outside of U.S. jurisdiction? Does this decision mean that other Constitutional rights also apply to the prisoners at Guantanamo?

I wish that I believed that these clever arguments were the main reasons Roberts disagreed with the decision. I wish I did not believe that he is another vicious right winger whose main concern in life is for security, survival, and victory rather than for justice. But I admire Will's attempt to show the virtues of the right wing Justices' reasoning. I admire more his ability to get to the heart of the matter when he writes:

No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America's Constitution, which limits Congress's power to revoke habeas corpus to periods of rebellion or invasion. Is it, as McCain suggests, indefensible to conclude that Congress exceeded its authority when, with the Military Commissions Act (2006), it withdrew any federal court jurisdiction over the detainees' habeas claims? As the conservative and libertarian Cato Institute argued in its amicus brief in support of the petitioning detainees, habeas, in the context of U.S. constitutional law, "is a separation of powers principle" involving the judicial and executive branches. The latter cannot be the only judge of its own judgment. In Marbury v. Madison (1803), which launched and validated judicial supervision of America's democratic government, Chief Justice John Marshall asked: "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Those are pertinent questions for McCain, who aspires to take the presidential oath to defend the Constitution.

If only Marshall were back at the head of the Supreme Court, I might have more confidence that justice will prevail in our country.

Doing What is Right on Guantanamo

The United States of America lived up to its promise as a nation that promotes human rights and justice under democratic rule yesterday.

The Supreme Court got it right when they ruled that foreign detainees at Guantanamo Bay, Cuba have a right to something at least resembling habeas corpus. The White House under George Bush has repeatedly thumbed its nose at any semblance of justice as it follows its own brand of Machiavellian principles. While it has allowed a military tribunal to oversee the system, Justice Anthony Kennedy (above), writing the majority opinion, said that the military's "review process is, on its face, an inadequate substitute for habeas corpus." Justice Kennedy writes.

Many of the critics to the ruling will argue that alien "enemies" do not have any Constitutional protection. This ruling disagrees. But it does so while stating explicitly that it is concerned with the just treatment of prisoners, and not with a strict application of U.S. citizens' rights toward foreign prisoners. "We do not hold that an adequate substitute must duplicate [the federal habeas law] in all respects." Kennedy admits in his response to the dissenting opinion, that there is no precedent for their application of constitutional principles to foreign detainees, but denies that this is a "barrier" to the decision.

That there is something more to this ruling than what is at stake in this one case shines through in the most popular quote from Kennedy's written opinion: "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

Importantly, Kennedy writes that "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law."

The impact of those two statements in combination reach far beyond the Guantanamo case alone. The Court is saying what many of us have believed for years--that the Bush Administration cannot dismiss the rule of law under the pretense of the very real dangers presented by terrorism. That would, presumably, apply to curtailment of the civil liberties of U.S. citizens as well.

Many of our fellow Americans will resent and ridicule this decision as a liberal abuse of the Court's powers. In fact, Justice Scalia and his fellow dissenters lead the way in this interpretation of the decision, which only narrowly passed at 5-4. We live in a very divided country. The conservative amongst us seem to want to put 'survival' at the top of their list of values. From the survivalist perspective, they justify actions that are not fitting for a democratic nation that supports basic human rights. But hasn't this always been the case in the long history of human affairs? The question in ethics is often about doing what is right and just as opposed to what is merely expedient. I am personally ashamed of my fellow countrymen whose consciences are not awake enough to remind them of this point. Nearly every atrocity perpetrated by dictators around the world has been done under the name of this expediency. It is against this arbitrariness that the rule of democratic rule has risen, and we must not forget that.

The United States should be a beacon of hope for the world. It should not be feared as an enemy of the rule of law.

Good articles: Congress's Guantanamo Burden
by Benjamin Wittes, and A Victory for the Rule of Law by Eugene Robinson. I think Newsweek gets it right with their title, Overplaying its Hand, by Stuart Taylor, Jr.