The administration and Congress could have gone further. The Constitution allows for the government to suspend habeas “when in Cases of Rebellion or Invasion the public Safety may require it.” Whether or not politicians feel that military tribunals — and not civilian courts — are the best way to deal with suspected terrorists, the fairness of those tribunals can be immune from federal-court review only if the “rebellion or invasion” pre-condition exists. And yet, even on their most dishonest days, neither the White House nor the disgracefully acquiescent Congress has claimed that the United States is facing a rebellion or invasion that would justify the suspension of the single most fundamental, and oldest, constitutional right. Not yet, anyway.
The Boumediene court’s four dissenters would have allowed such a quintessentially un-American power grab even without the declaration of “rebellion or invasion,” since they don’t believe that habeas applies to these prisoners at all. Astonishingly, the four bought into the administration’s theory so extensively that they are prepared to blame future civilian and combat deaths not on executive and legislative miscalculations and incompetence, nor on the inevitability of casualties in war, but on the high court majority’s insistence that the United States remain a nation of laws, not men — and that it not sacrifice its soul in its quest for security.
“America is at war with radical Islamists,” Justice Antonin Scalia intoned in his startlingly vituperative dissent. “Last week, 13 of our countrymen in arms were killed,” and the majority’s “activist” decision “will almost certainly cause more Americans to be killed.”
Given that Justices Scalia and Clarence Thomas claim to be “originalists” — that is, adherents to what they deem the strict text and original intent of the Constitution’s framers, regardless of modern conditions — I was surprised by their dissent, especially since they did so in such vehement terms. Indeed, all four self-avowed conservative justices proved they were willing to constrict the most important right enshrined in Anglo-American law because they believe, in effect, that expedience and modern realities should trump habeas corpus. Equally surprising is that John McCain, who before becoming the presumptive Republican presidential nominee had the guts to oppose George W. Bush’s illegal torture program, suddenly has seen fit to rail against liberty and the five justices who voted to preserve it. In contrast, presumptive Democratic nominee Barack Obama praised the decision.
There is thus a political subtext in all of this: Boumediene has shown how the Supreme Court plays a necessary role in protecting the predicate freedoms we take for granted. With judicial retirements on the horizon — John Paul Stevens is 88 years old, and Ruth Bader Ginsberg, who recently suffered a bout with cancer, is 75 — our next president will have the ability to push the court over the edge.
If McCain is serious about appointing the same kind of justices that Bush would, then we must take that threat to American liberty very seriously. This is, or surely should be, a major campaign issue, more important than John McCain’s temper or Barack Obama’s flag lapel pin. It’s time for the grown-ups in America to focus on what counts: we want to ensure a republic for coming generations. Americans, not yet in the gulag, can use their vote in November for this salutary purpose.
Harvey Silverglate is a Cambridge civil-liberties and criminal-defense lawyer. James Tierney and Jan Wolfe assisted in the preparation of this piece.