The Terrorists Have Won

Back in law school I had a professor that had copied the cover page from an abridged copy of the US Constitution. He had put an asterisk next to the title and underneath it said, "Now with 30% less freedom." The last two administrations have seen a gradual erosion of Constitutional rights. Occasionally the Supreme Court will step up to the plate and nullify a law or policy that is contrary to the Constitution. This past week they did so when they rendered their decision on Boumediene vs. Bush.

It wasn't long before pundits, bloggers, and critics to blast this brand of "judicial activism." Almost candidate Fred Thompson called the decision a "Supreme Error." Newt Gingrich suggested this decision will "cost us a city." If you visit any blogs or message bourds you will hear suggestions that the terrorists have won or that the detainees will be let go, given welfare, health care, and a free college education in the US. Absolute rubbish, in my opinion, but the internet wouldn't be the internet without hyperbole.

The published decision is here if you want to read it. It is long, even for the Supreme Court. The decision is 70 pages or so and the dissenting opinions are another 56 pages. I am still working my way through it and I will readily admit that Habeas cases were never easy for me, depite taking a class on federal jurisdiction. If you read the holding you will not find anything about the terrorists winning or even being let go and given a free college education. Essentially, they said the following:

1. The detainees named in the case are being held on US territory.
2. Habeas Corpus, as stated in the Constitution, may only be suspended in "Cases of Rebellion or Invasion the public Safety may require it."
3. This was not a situation where Habeas may be suspended.
4. The procedures and safeguards put in place by Congress and the President are not adequate substitutes.
5. Petitioners may file habeas claims in a US Court to challenge the claim that they are unlawful combatants.

All of the people named in this case are citizens of countries that are not at war with the United States. I think it is also fair to say that some are probably not terrorists. Even the ones that have done something deserve due process. They certainly shouldn't be held for years with no meaningful opportunity to challenge their detainment.

If you get a chance, at least read the holding and form your own opinion before you believe any of the doom and gloom predictions of the critics. Personally, I never liked a notion of a perpetual war on terror where people are held in prisons without any kind of procedural safeguards. I tend to agree with Justice Kennedy when he writes that:


In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom’s first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.