There is a time and a place for “judicial activism,” no matter what so-called conservatives say. If ever there were a time, it was last month when the Supreme Court was asked to hear a case that would have tested the constitutionality of President Bush’s controversial Military Commissions Act of 2006 (MCA). If ever there were a place it is Guantánamo Bay, where detainees have been held indefinitely without clearly defined procedures for determining their guilt or innocence of charges that are shadowy and ill-defined — a situation that makes a joke of the rule of law. But the Supreme Court went passive and decided not to hear the case — brought by petitioners held at that hellhole for more than five years who insisted on their habeas corpus right to review and challenge the evidence against them — in what is quickly turning out to be one of the court’s most horrific blunders in recent years.
At issue was whether the federal courts’ right to review the legality of a prisoner’s detention extends to Guantánamo, or whether the MCA placed Guantánamo beyond the reach of the courts. As a result of the Supreme Court’s demurral, a newly confident Justice Department, feeling much less pressure to restore any semblance of due process and transparency to its military tribunals, has brazenly placed further limitations on the already scarce rights of Guantánamo detainees. Just last week, the Justice Department announced that it would severely limit visits to Guantánamo prisoners by pro bono lawyers who have, in the past, proven somewhat effective in keeping their clients’ plight in the public, political, congressional, and judicial eye.
It’s no wonder prisoners at Guantánamo are rapidly losing confidence in their lawyers, as the New York Times reported on May 5. Since we don’t have a president who honors basic constitutional rights, and we don’t have a congress that has yet shown the cajones to repeal the MCA (which would require a veto-proof super-majority), it was particularly urgent that the Supreme Court demonstrate its continued willingness to try, at least, to impose the rule of law on a lawless administration.
What this country needs is a bold and unequivocal rebuff from the Supreme Court, protecting simultaneously the writ of habeas corpus and the right to the assistance of counsel. I am reminded of a case I had in 1977 that provides insight into what it means for a court to protect the right to legal counsel. My then–law partner, Boston attorney Thomas G. Shapiro, and I represented Kevin Manning, an accused drug dealer in state superior court. Prior to the trial, the defendant was contacted by a federal Drug Enforcement Administration (DEA) agent who had been working the case with a state police officer. The federal agent urged my client to become an informant in order to resolve his pending case. The agent said that the defendant should listen to the DEA rather than to his own lawyer, and that Shapiro’s and my client “should beware of big-name lawyers that are into making lots of money and a big name for themselves but not really doing too much good for their clients.” When the state’s highest court learned of this effort by the feds to interfere with the defendant’s right to be represented by legal counsel, it ordered the indictment dismissed.
It hardly seems inappropriate or “activist” for a court to insist on the preservation of such time-honored rights of free people. Indeed, it’s the least a court can do.
