‘Freedom’s first principles’

From Thursday’s 5-4 Supreme Court decision in Boumediene vs. Bush:

Justice Anthony Kennedy,

writing for the majority in granting detainees federal court access:

“Because our nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the court might not have this luxury.�

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.�

“In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. . . . While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.�

“Security depends upon a sophisticated intelligence apparatus and the ability of our armed forces to act and to interdict. There are further considerations, however. 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 the 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.�

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Justice David Souter,

concurring with the majority:

“A . . . 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.�

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Chief Justice John Roberts,

in dissent:

“Today the court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date.�

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Justice Antonin Scalia, in dissent:

“The game of bait-and-switch that today’s opinion plays upon the nation’s commander in chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional republic. But it is this court’s blatant abandonment of such a principle that produces the decision today.�

“Today the court warps our Constitution. . . . It blatantly misdescribes important precedents. . . . It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad. . . . And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The nation will live to regret what the court has done today.�