The Recent Gitmo Ruling

The Supreme Court's recent decision affirming that people the government has detained still have the right to Habeas Corpus, Boumediene v. Bush, has provoked quite a reaction from the right-wing - as is guaranteed to happen anytime a GOP executive has his power checked under the Constitution.

I think alot of what is said about this case is based on a simple misunderstanding of what our government is, what our Constitution provides for, and what our government actually has the power to do. On the part of people like John Yoo (UPDATE: See Glenn's reasoned dissection of Yoo here) and the WSJ, I think this misapprehension is deliberate and politically calculated. For others, I think it is just the result of reading the tripe in the WSJ. From commenting at Sweating Through Fog, I thought about this issue and I'm just going to repeat what I said there here:

I think there is a fundamental misapprehension about what this decision is about and about what our Constitution protects. The right at issue here, habeus corpus, is only at issue where the government has already imprisoned you. And all it is is a requirement that the government justify the imprisonment to a neutral tribunal. That's it. So saying we should give this right to only SOME of the people we lock up, that just doesn't make any sense at all. It is not about citzenship or non-citzenship - it is about what power the government has to imprison individuals. I somehow doubt we would have kind words for any nation that would lock people up with no recourse or proof with the only reason offered is that they are not citizens - I'd sure not call such a country a free one. If you go visit a country and you know you have no rights because you are not a citizen, that's a pretty scary visit.

There is no citizenship requirement for the bill of rights to apply. If you aren't a citizen and you are accused of a crime, guess what? The bill of rights still applies - there is no "citizenship test" to the fourth amendment.

And I then further clarified it:

Perhaps it is best to take a step back, to first principles. The first day of Con Law in Law School, you learn this basic fact: Our federal government is a limited government - in other words, any powers not specifically granted to it in the Constitution do not exist and it cannot do. Further, just to make things especially clear, there are provisions that make clear what the government cannot do (because some people, perhaps, are a little slow on the uptake of what a "limited government" means).

One of the things our government cannot do is lock people up without justification or recourse. That simply is a power our government does not have and has never had. (There is a limited exception for situations of invasion or insurrection, basically, to allow for when the courthouse is burning and the judges are on the run, when it would be impractical to hold a hearing).

Looked at it from that perspective, the ruling seems rather banal - it isn't about citizenship or non-citizenship - it isn't about where the prisoners are being held - it is about the jailors - the government. The government just plain lacks the power to lock people up without giving them a hearing. And that comes from our limited government constitution. As the opinion rightly pointed out, you can't turn on or off the constitution based on geography or citizenship - because the constitution ALWAYS applies to the government, it ALWAYS applies to the jailors.

Look at it this way - for the geography, do you really think the president could simply take someone to Canada, then put a gun to his head and blow his brains out and it would somehow not violate anything in the Constitution because hey, while it was the government doing it, it wasn't in the US, so its perfectly legal? There is nothing in the constitution that says the constitution only restricts our government's behavior when they are standing in the right place. It ALWAYS restricts it.

And as far as citizenship goes, as I already said, there are very few parts of the constitution that are limited to just citizens - like qualifications for office and the right to vote. The rest just applies to people, generally. And no, there are not any exceptions for "enemy combatants" - a term you will, in fact, find nowhere in the constitution, and was just made up out of whole cloth to justify the illegal actions of the administration (sort of like torture was turned into "enhanced interrogation techniques"). You can't write a memo and suddenly be absolved from following the constitution. (Sorry John Yoo).

If you are really concerned about checks and balances, you should be concerned about the massive executive power grab of the past seven years - done while Congress had sat idly by and while court review was dodged left and right by playing all sorts of games, like pulling or transferring prisoners right before they get their court dates and then calling the issue moot.

As I said before, I believe in the 10th Amendment. I'd have thought that anyone else who did so would hail this ruling as properly limiting government power to what is allowed in the Constution.