Boumediene and the future of liberty

I'm still reading the decision, but, while I share conservative concerns about terrorists escaping justice to freshly kill more Americans, Boumediene looks like a good decision to me.

This argument within the decision looks exactly right to me:

"That the Framers considered the writ a vital instrument
for the protection of individual liberty is evident from the
care taken to specify the limited grounds for its suspension:
"The Privilege of the Writ of Habeas Corpus shall not
be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it." Art. I, §9, cl. 2; see
Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425,
1509, n. 329 (1987) ("[T]he non-suspension clause is the
original Constitution's most explicit reference to remedies").
The word "privilege" was used, perhaps, to avoid
mentioning some rights to the exclusion of others. (In
deed, the only mention of the term "right" in the Constitution,
as ratified, is in its clause giving Congress the power
to protect the rights of authors and inventors. See Art. I,
§8, cl. 8.)

Surviving accounts of the ratification debates provide
additional evidence that the Framers deemed the writ to
be an essential mechanism in the separation-of-powers
scheme. In a critical exchange with Patrick Henry at the
Virginia ratifying convention Edmund Randolph referred
to the Suspension Clause as an "exception" to the "power
given to Congress to regulate courts." See 3 Debates in
the Several State Conventions on the Adoption of the
Federal Constitution 460­464 (J. Elliot 2d ed. 1876) (here
inafter Elliot's Debates). A resolution passed by the New
York ratifying convention made clear its understanding
that the Clause not only protects against arbitrary suspensions
of the writ but also guarantees an affirmative
right to judicial inquiry into the causes of detention. See
Resolution of the New York Ratifying Convention (July 26,
1788), in 1 Elliot's Debates 328 (noting the convention's
understanding "[t]hat every person restrained of his lib
erty is entitled to an inquiry into the lawfulness of such
restraint, and to a removal thereof if unlawful; and that
such inquiry or removal ought not to be denied or delayed,
except when, on account of public danger, the Congress
shall suspend the privilege of the writ of habeas corpus").
Alexander Hamilton likewise explained that by providing
the detainee a judicial forum to challenge detention, the
writ preserves limited government. As he explained in
The Federalist No. 84:

'[T]he practice of arbitrary imprisonments, have been,
in all ages, the favorite and most formidable instruments
of tyranny. The observations of the judicious
Blackstone . . . are well worthy of recital: `To bereave
a man of life . . . or by violence to confiscate his estate,
without accusation or trial, would be so gross and notorious
an act of despotism as must at once convey the
alarm of tyranny throughout the whole nation; but
confinement of the person, by secretly hurrying him to
jail, where his sufferings are unknown or forgotten, is
a less public, a less striking, and therefore a more
dangerous engine of arbitrary government.' And as a
remedy for this fatal evil he is everywhere peculiarly
emphatical in his encomiums on the habeas corpus
act, which in one place he calls `the BULWARK
of the British Constitution.'' C. Rossiter ed., p. 512 (1961)
(quoting 1 Blackstone *136, 4 id., at *438)."

I have read many of the criticisms of the court and I am making my way through the decision and the dissents. So I am open to my early impression being wrong on this matter.

Guaranteeing habeas corpus does not seem like sound judgment, to me, at this point, because no terrorists will ever escape justice. They undoubtedly will. As they undoubtedly do currently. As they undoubtedly would, do, and have under any legal regime, no matter how security-minded, liberal or illiberal. It would be very difficult to argue that more illiberal regimes that engage in more indefinite detentions without such concerns for civil liberties in places like Pakistan, Egypt, Saudi Arabia, Syria, Libya, Yemen, and the like do not continue to have problems with known terrorists escaping justice or terrorism being effectively wiped off of their political radar screens. Each of these countries arguably have far worse problems on both counts.

The question is are we willing to follow such examples, to similarly sacrifice liberal democratic values, with such poor results to show for it?

Guaranteeing habeas corpus seems to me to be good law, at this point, because it comes to terms with this fact of justice, no matter the legal regime, and affirms that an independently important judicial priority is guaranteeing that innocent peoples' liberties are not sacrificed, and certainly not indefinitely, without some kind of recourse to challenge such detention and expect those detaining them to present evidence that demonstrates that their detention is just. Without such evidence, they should not be in detention in the first place, or, at the very least, a clearer and more obvious path to securing evidence should be clear in the minds of those detaining them because the reasons for detaining a suspect are so clear and warranted. Those whose mindsets and policies are driven around fear rather than evidence get impatient about civil liberties and due process when lives are at stake.

And that is exactly why habeas corpus is such an established legal principle. And that is the point that the court is making in this decision.

A serious concern for civil liberties is the future of conservativism, liberalism, and liberal democracy, because it is the only decision that is squared with liberty and the liberal democratic values that underpin them.



I'm open to being persuaded differently on this question, by either American conservatives or British Laborites, whose similar position is argued in this video, convinced of the case for more indefinite or longer detentions. I don't want Americans or anyone killed by terrorists any more than anyone else. I am persuaded by the Labor representative in this discussion that some kind of procedure for petitioning to hold suspects that law enforcement, military officials, and prosecutors have more confidence are, in fact, terrorist suspects, while evidence is being gathered, is needed. But allowing the terrorists to scare Americans, Brits and others into abandoning our liberal democratic values is exactly the point of terrorism, as London's conservative mayor, Boris Johnson, argues eloquently in that discussion of civil liberties.

I've read a lot of the praise and criticism for the decision. Now I need to plow through the decision and its dissents.

As well as respond to Courtney's question, read and work on my book, clean my apartment, do a character sketch for this theater script my roommate and I are working on and coordinate work on this film idea, get this Father's Day card out, today, continue reading Intelligent Investor and do my financial and investment work, work on lesson plans for next year, get Devang's boxes sent out to him, and try to manage my time, money, energy and resources to get all of this done.

Perhaps I'm a little too ambitious. How someone so ambitious could be so goddamn lazy, I have no clue, but somehow I manage it.

One thing at a time.

Starting with Dad.