Skeptical Eye

William Norman Grigg on Habeas Corpus and Boumediene v. U.S.

The majority opinion in Boumediene repeatedly struck Jeffersonian notes in its demolition of the Bush Regime's claim that the president, in wartime or any time, has supreme, unqualified, and unaccountable power to imprison anyone at his discretion for as long as he sees fit. "The Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among the independent branches," noted the majority decision. "This design serves not only to make Government accountable but also to secure individual liberty.... That the Framers considered the writ [of habeas corpus] a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension...." (Like Jefferson, I would prefer that the Constitution not permit the writ to be suspended at any time.)


Anticipating objections that the Court was intruding on the exigent powers of a wartime presidency, and thereby undermining "national security," the majority offered an elegant reminder that true "security" in the American tradition begins with protecting the rights of the individual, rather than the supposed prerogatives of rulers: "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 to separation of powers..... Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person." So spoke the five-member "liberal" majority of the High Court.