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Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
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A Stunning Rebuke to Tyranny


Yesterday, in a stunning rebuke of President Bush, the Pentagon, and Congress, the U.S. Supreme Court declared unconstitutional the cancellation of habeas corpus for foreigners accused of terrorism. The Court’s decision in Boumediene v. Bush nullified the provision in the Military Commissions Act that purported to remove the jurisdiction of the federal courts to hear habeas corpus cases for the detainees at the Pentagon’s prison camp at Guantanamo Bay.

First and foremost, keep in mind why the president and the Pentagon set up their prison camp and “judicial” system in Cuba: To avoid the Constitution, the Bill of Rights, and the federal judiciary that the Constitution established.

It is impossible to overstate the significance of that motivation, for it reflects how much the president and the Pentagon hate the principles set forth in both the Constitution and the Bill of Rights. After all, why else would they try to avoid the application of such principles? If they were proud of the principles in the Constitution and the Bill of Rights, wouldn’t they want to extend such principles rather than try to avoid them?

In 2004, the Supreme Court put the quietus to the president’s and Pentagon’s plan to establish a prison camp and “judicial” system that were independent of constitutional provisions and federal-court interference. In Rasul vs. Bush, the Court held that the Constitution extended to the Pentagon’s operations in Cuba. This ruling upheld the right of detainees at Guantanamo to file petitions for writs of habeas corpus to challenge their detention.

It’s important to remind ourselves what habeas corpus is and what it isn’t. Habeas corpus does not involve a full-blown trial in which the guilt or innocence of an accused is determined. It is simply a proceeding in which a judge determines whether the government has cause to be holding a person. It is designed to prevent government officials from holding people indefinitely without charge.

Of course, that’s exactly what the Pentagon has been doing at Gitmo, where people have been held for six years without any guarantee of ever being tried or released. The significance of Rasul is that the ruling enabled detainees to file petitions in federal courts saying, “I’m an innocent person. Please give me a chance to show you that. The U.S. military authorities are holding me without cause.”

At the habeas corpus hearing, both sides would be permitted to be heard. If the Pentagon could establish just cause why the person should be held, the prisoner would be returned to prison. If the Pentagon could not do so or if the prisoner established his innocence, then the federal judge would order his release. Both sides could appeal the decision to the federal court of appeals and then to the U.S. Supreme Court.

After the Rasul decision, Congress, at the behest of the president, enacted the Military Commissions Act, which removed the jurisdiction of the federal courts to hear habeas corpus petitions from the Guantanamo prisoners. It was a cute trick designed to avoid the express constitutional prohibition against suspending habeas corpus except in times of rebellion or invasion.

Fortunately, the Supreme Court did not permit this machination to succeed. In Boumediene, the Court held that the provision of the Military Commissions Act purporting to remove jurisdiction of the federal courts to hear habeas corpus cases is unconstitutional.

In one of the finest expositions of the history and purposes of habeas corpus, the majority pointed out that habeas corpus is the bulwark of a free society. If people lack a way to challenge their imprisonment by government officials, then all other rights become a dead letter.

For example, suppose a person is imprisoned for criticizing the Pentagon. If he has no right to go to court to say, “They’re wrongfully imprisoning me for criticizing them,” then his right to freedom of speech means nothing.

There were four dissenters in Boumediene, all conservatives. In fact, many others in the conservative movement are reviling the majority decision, claiming that the ruling is going to make the American people less safe. The conservative dissent in Boumediene and the conservative reaction to the majority decision confirm why conservatives can never be trusted when it comes to our rights and freedoms. They are all too eager, especially in time of crisis, to sacrifice liberty for safety, not realizing that tyranny brings neither.

President Bush, a conservative, says that while he disagrees with the ruling in Boumediene, he intends to comply with it. No doubt he is wishing he could do what his friend, partner, and ally in Pakistan, President Pervez Musharraf has done: fire the Supreme Court justices, appoint his cronies to replace them, and jail any lawyers who dare to protest his actions.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.