“…the only thing we have to fear is fear itself”

The Supreme Court’s 5-4 decision in Boumediene v. Bush last week restoring the right of habeas corpus to the detainees held in Guantánamo Bay was greeted on the Right by another round of fear mongering that would have us believe the end of the world is at hand.

Even such an educated, learned person as Justice Antonin Scalia, in his dissenting opinion, sounded the alarm that the Boumediene decision “will almost certainly cause more Americans to be killed, “while The Wall Street Journal editorialized, “We can say with confident horror that more Americans are likely to die as a result.”

Presumptive Republican Presidential nominee John McCain greeted the decision with his usual flip-flop approach to campaign issues opining on the day the opinion came out, “It obviously concerns me … but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantánamo Bay and I still think that we ought to do that.” The next day, however, McCain changed his tune stating, “The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country.”

On “The O’Reilly Factor,” guest host Laura Ingraham, a lawyer and former law clerk for Justice Clarence Thomas who, apparently, has no use for our judicial branch of government because the justices are “unelected,” advocated that Bush break the law and disregard the Court’s decision in this case.

Article 1, Section 9, Clause 2 of The Constitution, known as the Suspension Clause, states, “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.” In section 7(a) of the Military Commissions Act of 2006, Congress purported to strip habeas rights from the Guantánamo detainees by amending the habeas corpus statute. In Boumediene, the Court held that section of the Act to be unconstitutional, declaring that the detainees still retained the constitutional right to habeas corpus.

Many argue the rights granted under The Constitution apply only to American citizens on American soil. They argue that since Guantánamo Bay, although under U.S. control, is technically under the sovereignty of Cuba and, thus, The Constitution does not apply.

Justice Kennedy, writing for the majority, however, reiterated the Court’s finding, in Rasul v. Bush, that although Cuba retains technical sovereignty over Guantánamo, the United States exercises complete jurisdiction and control over its naval base and, thus, the Constitution protects the detainees there.

Kennedy rejected the Bush administration’s position that the political branches could “govern without legal restraint” by locating a U.S. military base in a country that retained formal sovereignty over the area. Furthermore, Kennedy observed, “the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers.” Indeed, habeas corpus was one of the few individual rights the Founding Fathers wrote it into the original Constitution, years before they enacted the Bill of Rights.

What did the Court decide that so incensed Ingraham and others?

The short answer is the Right wishes to turn The Constitution on and off to meet its own goals. The Bush Administration has long sought to circumvent The Constitution in order to enhance the powers of the Executive Branch while obviating the system of “checks and balances” deemed by the Founding Fathers to be essential to survival of our system of government.

Every school child has been taught that Congress makes the laws, the Executive enforces the laws and the Courts interpret the laws. In his opinion, Kennedy worried that the political branches could “have the power to switch the Constitution on or off at will” which “would lead to a regime in which they, not this Court, say ‘what the law is.’”

Will this decision really imperil our safety?

No, it won’t. The Boumediene decision will not directly impact the criminal cases against Khalid Sheikh Mohammed and the few others who will be tried in the military commissions. It is the 211 men who have filed habeas corpus petitions challenging their “enemy combatant” designations who will benefit from this ruling. No one will be automatically released. They will simply be afforded a fair hearing, and, surely, most Americans would not object to a requirement that our government fairly prove someone guilty before we imprison him indefinitely.

Even the chief prosecutor at Nuremberg advocated due process for the Nazi leaders, stating, “The ultimate principle is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty.” The presumption of innocence stands as a lynchpin in our system of law.

In Boumediene, Justice Souter cut to the chase in his separate opinion when he noted “the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years.” None of them has been charged with a crime and none has been brought before a fair and impartial judge.

The real fear of the Bush Administration is that there is no proof of guilt for many of the detainees, many of whom were sold as bounty to the U.S. military by the Northern Alliance or warlords for $5,000 a head. Even Maj. Gen. Jay Hood, the former commander at Guantánamo, admitted to The Wall Street Journal, “Sometimes we just didn’t get the right folks.” But possibly innocent men remain detained there because “nobody wants to be the one to sign the release papers.”

Benjamin Franklin’s famous admonition, “They who would give up an essential liberty for temporary security, deserve neither liberty nor security,” has never been more appropriate than it is today. It’s time we stopped living in fear, stopped listening to the politics of fear mongering to which we have been subjected since 9/11 and put our energies into the task of rebuilding America’s moral reputation. This decision by the Supreme Court is, at long last, a step in the right direction.