Rule of law makes a comeback in the US?

Posted: June 13th, 2008 | Author: | Filed under: law, obama | No Comments »

The Boumediene v. Bush decision of the US Supreme Court is an interesting read for anyone interested in Constitutional law, common law in general, the principle of checks and balances etc. Regarding the history of habeas corpus:

Even so, from an early date it was understood that the King, too, was subject to the law. As the writers said of Magna Carta, “it means this, that the king is and shall be below the law.”

The most important paragraph:

Accordingly, for purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. 

The smackdown:

The Government’s formal sovereignty-based test raises troubling separation-of-powers concerns as well. The political history of Guantanamo illustrates the deficiencies of this approach. /—/  And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. 

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.”  Murphy v. Ramsey, 114 U. S. 15, 44 (1885).  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.

Bush is not happy:

It was a deeply divided court and I strongly agree with those who dissented. We’ll study this opinion to determine whether or not additional legislation may be appropriate.

Kenneth Roth from the Human Rights Watch praises the judgment:

The Supreme Court decision has stripped Guantanamo of its reason for being: a law-free zone where prisoners can’t challenge their detention. The ruling is not only a landmark victory for justice, it’s a big step toward establishing a smarter, more effective counterterrorism policy.

Barack Obama also issued a statement:

Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus.

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