2008 Woodie Awards
The Supreme Court's restoration of the Great Writ: a slip opinion
Scott Stewart
Issue date: 6/17/08 Section: Opinion
I'm not a lawyer, although I wouldn't mind someday being one if it meant I could contribute to assuring that the rule of law is upheld in this country.
I started out intending to write a column about how the Supreme Court of the United States struck down key portions of the Military Commissions Act on Friday. This decision restored the Great Writ of Habeas Corpus, the right to appear in court to determine whether you are lawfully imprisoned, for those deemed "enemy combatants" and incarcerated indefinitely at Guantanamo Bay in Cuba.
While researching this momentous restoration of liberty, I read portions of the courts' slip opinion for the case, Boumediene v. Bush. The opinion is perhaps one of the most moving pieces I have read in a long time - its simplicity, clarity and strength affirms how fundamental our rights are to the preservation of the republic.
So, rather than opine at length, I would like to share the opinion of the court, written by Reagan-appointee Associate Justice Anthony Kennedy, as it struck down the challenges to the Great Writ:
"In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. See United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936). Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security.
"Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation's present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions from habeas corpus relief derives.
I started out intending to write a column about how the Supreme Court of the United States struck down key portions of the Military Commissions Act on Friday. This decision restored the Great Writ of Habeas Corpus, the right to appear in court to determine whether you are lawfully imprisoned, for those deemed "enemy combatants" and incarcerated indefinitely at Guantanamo Bay in Cuba.
While researching this momentous restoration of liberty, I read portions of the courts' slip opinion for the case, Boumediene v. Bush. The opinion is perhaps one of the most moving pieces I have read in a long time - its simplicity, clarity and strength affirms how fundamental our rights are to the preservation of the republic.
So, rather than opine at length, I would like to share the opinion of the court, written by Reagan-appointee Associate Justice Anthony Kennedy, as it struck down the challenges to the Great Writ:
"In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. See United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936). Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security.
"Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation's present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions from habeas corpus relief derives.
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