Habeas corpus, the Great Writ, is a legal principle first articulated in medieval England that gives a prisoner the right to be brought before a judge to hear the charges and challenge his imprisonment. It is one of the rights the Founding Fathers extended to the accused in the Constitution. Years ago, the Supreme Court observed that “habeas corpus is the fundamental instrument safeguarding individual freedom against arbitrary and lawless state action.”
In the outrage following 9/11, the Bush administration believed it could dispense with this right, not only for Taliban, al-Qaida and assorted accused terrorists it picked up around the world, but even for American citizens on U.S. soil. Even given the mood of the time, the American people seemed distressingly willing to go along with the Bush administration’s assertion that it could jail anyone, indefinitely, without counsel, charge or trial simply by designating them “enemy combatants,” a term of art designed to evade the protections given prisoners of war under the Geneva Conventions.
Now, the Supreme Court has spoken for the third time on this issue: The detainees at Guantanamo Bay are entitled to challenge the terms of their detention in U.S. civilian courts. The decision was an uncomfortably close 5-4, with the justices generally considered liberal in the majority.
What happens next is up to the federal judiciary and the Bush administration. The judges could order some of the detainees to stand trial in federal criminal courts. Certainly, some of the 70 detainee lawsuits on hold pending the high court’s ruling can now go forward. And the Bush administration could try for a third time to overhaul its one-sided proposal for military commissions in a way that will pass judicial muster.
What the decision won’t do — as Justice Antonin Scalia asserted it would — is to “almost certainly cause more Americans to be killed.” This is the kind of fear mongering that got us into this predicament in the first place.
This decision will have a satisfactory outcome if it finally puts an end to the Bush administration’s insistence that it is entitled to operate outside the Constitution.