World

Habeas Corpus Hangs in the Balance

by julianw | June 16, 2008 at 09:20 am

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Last week, in a controversial decision denounced by President Bush, the Supreme Court restored habeas corpus for Guantanamo Bay prisoners. But as The Guardian argues today, the future of habeas corpus in America is far from certain. This issue gets surprisingly little mainstream media coverage, maybe because habeas corpus is such an ancient, fundamental value that people see it as a natural right rather than a privilege.

When we talk about the presidential election, we talk about race and age and Iraq and the economy and healthcare. When we speak of the supreme court at all, we refer chiefly to abortion rights. The president, of course, appoints the court's justices. There are nine. They leave the bench either voluntarily (retirement) or involuntarily (death). One is 88. Another is 75 and has been living with a colon cancer diagnosis for about a decade. A third is 72 in July, and a fourth is 70 in August.

All the above, incidentally, are part of the wobbly majority that, by a 5-4 margin, ruled against Bush and for the constitution. The rightwing anti-constitutional minority is much younger (Chief Justice John Roberts, appointed by Bush, is just 53).

The next president, if he serves eight years, will almost certainly appoint one, two or maybe even three justices, who will play a large role in shaping an anti-terrorism policy that is both effective and legal. So what might our two candidates do?

McCain used to be a constitutionalist. He used to say we should close Gitmo. Last week he said the court had just issued "one of the worst decisions in the history of this country". Considering that the supreme court spent most of the 19th century upholding slavery and segregation, that's saying something. He complains we'll see a flood of lawsuits, which is true, but that's the administration's fault for writing bad law.

Barack Obama, who to put it mildly doesn't stand to gain politically from defending the rights of terrorism suspects, drew a sharp distinction with McCain: "That principle of habeas corpus, that a state can't just hold you for any reason without charging you and without giving you any kind of due process - that's the essence of who we are." Obama's apparent seriousness on these questions is supported by a statement he made in May on what he hoped to accomplish in his first 100 days. Without prompting, he included a pledge to "review every single executive order issued by George Bush and overturn those laws or executive decisions that I feel violate the constitution".