Give me liberty or give me security?

The more I reflect on today's Supreme Court decision (.pdf) in Boumediene et al. v. Bush et al., the more wonderful and extraordinary it seems to me. Also extraordinary but in no way wonderful is Justice Antonin Scalia's written dissent. Scalia is a living rebuke to everything the Founders held dear.

I am not a lawyer, so I don't know if the extensive recounting of the historical background of habeas corpus and the writ's centrality in the thinking of the Framers is typical. Kennedy, writing for the majority, says:

The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system.

I take this line of reasoning to be a shot across the bow of the USS Unitary Executive by Justices Breyer, Ginsburg, Souter, Stevens and Kennedy. It is a reproof of every argument advanced for restricting liberty in the name of the War on Terror.

After recounting historical failures of the writ "in times of political unrest," the opinion states that in one case (Darnel's Case against Charles I) of wrongful imprisonment, "legislative response was long delayed" and the King "began to abuse his authority again and Parliament was dissolved." 

In this, I read a direct criticism of Congress for shirking its duty to check an out-of-control executive. The justices go on:

This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. [...]

That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion of Invasion the public Safety may require it."

It seems the justices are giving Congress an elementary lesson in Constitutional law and American history. It couldn't be clearer. In case some of the Federalist Society members have trouble remembering, the opinion provides extensive support for this viewpoint from accounts of the ratification debates. None of it is difficult nor does it require a law degree to understand.

It really is a shame that the rightwing authoritarian voter will probably not take the trouble to read the opinion but instead find validation of ignorance in the utterances of the usual gasbags, including McCain. Yep, McCain lost no time in dishonoring his own cruel imprisonment with complaints about the decision.

Regarding whether or not the Constitution applies to territory that is sovereign to Cuba but leased by the U.S., the justices say this:

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" but are subject "to such restrictions as are expressed in the Constitution." [...] Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." [...]

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensible mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

The rebuke is breathtakingly plain. This decision makes me want to do the happy dance.

To read Scalia's dissent is to take a trip to the dark side. He opens with a "description of the disastrous consequences of what the Court has done today." This doomsday prediction is remarkable for the primacy of fear over liberty. What the Framers feared most is what Scalia most desires. He is openly derisive of his colleagues. He relies on accounts of violent attacks subsequently committed by detainees who had been released as if they are predictive of future behavior by current detainees and thus obviate the need to recognize Constitutional limits to the suspension of habeas corpus. Scalia would have the history books changed from "Give me liberty or give me death" to "Give me security, liberty's not safe."

Scalia closes with this:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of othe constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson's opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today. I dissent.

That's quite an extraordinary charge: "The Nation will live to regret what the Court has done today." In all, Scalia would rather restrict constitutional protections, keep human beings locked up forever with no recourse and traffic in unreasoning fear of terrorists on the loose everywhere than discommode the Executive and the military.

Many years ago, in the mid-'60s, I traveled through the Plains states, the South and Southwest. Every highway and byway was dotted with roadside billboards demanding, in giant letters, "IMPEACH EARL WARREN." I was young and apolitical at the time. Who the hell is Earl Warren, I wondered.

The right wing has never been shy about demanding impeachment or elimination by other means of those with whom they disagree. Democrats, meanwhile, bend over backward to accommodate different viewpoints in a disastrously misguided political calculation that sacrifices principle for expedience. Thus we are saddled with Madame Speaker "Impeachment Is Off The Table" Pelosi.

Enough is enough. Antonin Scalia has continued to flaunt his unworthiness to sit on the Supreme Court. He doesn't regard torture as being prohibited under the Eighth Amendment. ("Has anybody ever referred to torture as punishment? I don't think so.") He has refused to recuse himself in cases in which he has personal connections and interests. And his decisions have advanced an extreme form of executive power that would be arguably criminal had it come from anyone other than a member of the governmental branch charged with the interpretation and preservation of constitutional norms. Scalia is a constitutional Catch-22. I doubt, though, that I'll ever see billboards that read "IMPEACH ANTONIN SCALIA."