Tag Archives: Anthony Kennedy

a good day for basic human liberties

yaay habeas corpus.

Kennedy is the difference between a conservative — someone whose values I frequently dislike and disagree with, but who is in many ways a respectful person — and a proto-fascist.

For the right-wingers who like to throw the term “fascism” around, the core concept of fascism is that the State takes precedence over the Individual. Habeas corpus — the right to appeal imprisonment by the State (to another arm of the State, usually) — is the fundamental human right that distinguishes fascism from non-fascism. Other human liberties — freedom of expression, freedom of belief, freedom of movement — are likely more germane to most of the people most of the time. But habeas corpus is the counter to the most basic power representatives of the State assert: the power to imprison individuals. It’s pretty limited as far as rights go — it boils down to a right to argue with the reasons for imprisonment. But without this fundamental check on the State’s power, every other human liberty is a hollow promise.

Roberts’ dissent — effectively, “what are they complaining about? we treat them so well!” — is the same response that can be heard in any institution that has robbed people of their liberty, from dictators to slaveholders to prison keepers to that horrid Austrian guy who said, “I could have killed my daughter” (instead of imprisoning and raping her for decades).

So yaay habeas corpus. Yesterday’s decision gives me some hope that we may yet arrest our slide into unmitigated fascism.

… a few more thoughts on reading Boumediene v. Bush:

Souter’s concurrence (joined by Ginsburg & Breyer): Souter takes on the dissent’s cries of judicial activism, which essentially argued that the case wasn’t sufficiently politically ripe — that the Supreme Court should have sat on its hands and not rushed to judgment to cut out the proper executive (read: military) procedures. I liked it a lot so I quote in full:

A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years []. Hence the hollow ring when the dissenters suggest that the Court is somehow precipitating the judiciary into reviewing claims that the military (subject to appeal to the Court of Appeals for the District of Columbia Circuit) could handle within some reasonable period of time. See, e.g., post, at 3 (opinion of ROBERTS, C. J.) (“[T]he Court should have declined to intervene until the D. C. Circuit had assessed the nature and validity of the congressionally mandated proceedings in a given detainee’s case”); post, at 6 (“[I]t is not necessary to consider the availability of the writ until the statutory remedies have been shown to be inadequate”); post, at 8 (“[The Court] rushes to decide the fundamental question of the reach of habeas corpus when the functioning of the DTA may make that decision entirely unnecessary”). These suggestions of judicial haste are all the more out of place given the Court’s realistic acknowledgment that in periods of exigency the tempo of any habeas review must reflect the immediate peril facing the country.
It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. [] The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court’s exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation. [some internal cites omitted]