Supreme Court Failing on Habeas Corpus

I was extremely disappointed in the court’s ruling the other day about the Writ of Habeas Corpus and the prisoners at Guantanamo Bay. Not that I disagree with the outcome. I just thought that the reasoning of both the majority and the minority were wrong. I do agree with Justice Scalia that the majority opinion is based on a judicial power grab. That is fairly plain and simple to see. He does a nice job of exposing that in his dissent. What Justice Scalia fails to do is convince me that people can be held forever without charges (his dissent begins on pg. 110).

First, let us just remember that the right of Habeas Corpus, the right not to be held without trial, is a fundamental right. It is not established or given to us by the Constitution, or even by English Common Law, but rather it is ours by Natural Law. This is clearly set forward in the Declaration of Independence. We have the right to life, liberty, and the pursuit of happiness given to us by our Creator. He and He alone is the source of these rights. Such truths are self-evident.

Now I have to admit that I was extremely disappointed the four conservative justices voted against this. It is telling in my opinion that the led of the dissent is not a legal argument but circumstances of our danger. The closing line is also not a legal argument but a statement of our danger. It seems to me that this may have been the motivating factor in the decision.

His legal arguments appear to be that the Constitution does not extend to Guantanamo Bay since it is “located within the sovereign territory of Cuba” (pg. 116). However, does this mean the Cubans run the base? No. That is not the case. Being within the territory of Cuba is not the same as being under Cuban authority. If the Cubans were to attack Guantanamo, would we consider it an attack on American soil or an attack on our sovereignty? I think we would, and rightly so in my opinion. Embassies are considered foreign soil. Our American embassies are considered under American authority despite the fact that they are within the sovereign territories of other countries. I see no reason military bases do have the same standard applied to them. So his reasoning there seems lacking.

Scalia goes onto his main point that the writ of Habeas Corpus does not extend to foreigners. The clause in the Constitution that allows Congress to suspend Habeas Corpus during times of “rebellion or invasion” makes it clear that the writ discussed is only that of American citizens. I agree with that. Although it should be noted that neither exists in this case. Scalia points to Prisoners of War and a few cases regarding the lack of Habeas Corpus for those captured during war. Again, I agree with the situation of POW’s. However, this is not what is going on now. Prisoners of War are kept during war until the end of war when they are returned. Yet, Congress has not declared war. We are not at war. If you look at the Presidential symbol the eagle’s head is still pointed toward the olive branches. We are not at war. Yet, Scalia refers to these detainees as enemy combatants. They are prisoners of the War on Terror. This undeclared War on Terror then makes these people enemy combatants. Such logic elludes me. When is the war on Terror over? On page 111 (page 2 of the dissent) Scalia states that “America is at war with Islamists”. Really? All of them? We have not yet fired at shot at Hamas or Hezbollah. Surely they count as radical Islamists. What about Yemen or Saudia Arabia. They have many radicals. Are we at war with them as well? Would we have the right to swoop in and hold the leader of Iran (I am not even going to try and spell his name) for six years or more simply because he is a radical Islamist? I think not. What is more, what about Minneapolis, Minnesota. That city has some radical Islamists, can we take them to Guantanamo and hold them forever? No, I think not. Again we have never declared war on radical Islam.

The point being that the War on Terror or the War on Radical Islamists are idealistic wars, not actual wars. Thus, I do not think that POW’s can be used as an example. The War on Terror may never end. Surely Justice Scalia, Alito, Roberts, and Thomas, would not say that we could scoop up poor people in Mexico and hold them at the US Embassy in Mexico City because we are currently in a War on Poverty. Surely they would not think that we could kidnap Columbian drug lords and hold them at military bases around the globe forever because we are in a War on Drugs.

Another point can be made here and should be. If I agree that the Writ of Habeas Corpus in the Constitution is only talking of American citizens, does that mean that foreigners have no rights? Of course not. If we want to find out what the original intent of the Constitution was, then we would understand that we were never to detain foreigners even if they were fighting America. That is a power not granted to the government in the Constitution. Yes, the clause on the writ does not apply to them, but the Constitution does not enumerate a power that allows detention of foreigners either. This can be illustrated by the commonality of prisoner exchanges in actual wars like the Revolutionary War, the War of 1812 and so on. Even during actual wars the government did not keep prisoners forever. Occassionally prisoners were just released on their honor to go home and not fight anymore as if they were still prisoners. Do you think that people obeyed such things? Well, let us just say General Winfield Scott, presidential candidate in 1856, broke his vow after being captured in the War of 1812. This would cut down Scalia’s argument that people return to fight on the battlefield when let go. The founders thought this an insufficient reason to hold enemies. When Grant stopped prisoner exchanges during the Civil War it was a huge scandal. Such things were not done. One could even sight Andrew Jackson who hung two English citizens in a military tribunal after capturing them in Spanish Florida for aiding Indians in their fight against America. This caused a huge controversy. England almost declared war except that America apologized for its behavior.

The main point I want to make is that people have the right to liberty, and our government cannot take it away. Justice Scalia is right. Many of these terrorists might go back and do something stupid like fight us again. However, that does not give us the right to imprison them without charges. It does not give us the right to hold them until we deem the days of terror over. He has a right to be free simply because he is made in the image of God even if he is going to do something sinful and stupid with that right. If he has committed a crime then he should be charged and tried like everybody else.

Thus, I was disappointed with both sides in this decision. I long for a day when the court stops playing politics, stops following Positivism, and stops playing games with the Constitution and the Natural law upon which it was founded.