Image of the 1679 Habeas Corpus act by Byron Realey
Terrorism works in that it scares nations into abandoning their values. Mature nations will resist this fear and insist on being themselves. Al Qaeda hasn’t actually killed many people (the LTTE has), but all these terrorist groups have – like viruses – hijacked their host nation’s very DNA – provoking an immune response out of proportion to the threat. Bush and Cheney wove Al Qaeda terror so deeply into American political consciousness that abandoning even obvious parts of the Constitution – like habeas corpus – became OK. Now, as that dark era of torture and incompetence ends, the Supreme Court has ruled that habeas corpus cannot in fact be suspended. That is, American detainees in Guantanamo or anywhere do have the right to a trial. What’s odd is that the dissenting opinions for Scalia and all take an ideological bent on what is really a simple legal issue. It’s like the response to “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” is “Look over there, terrorism!”
Probably the silliest global trend is that many long-term policy decisions are now deemed ‘luxuries’. This is largely due to the fact that under the Bush administration there were effectively no adults in charge. This will definitely change by next year, and perhaps we can move back to a more mature discourse. The American Constitution was a very brave document in that it thought 200 years ahead rather than focusing on the immediate threats of a nation at war. Today’s policy makers, however, seem to think about 10 years behind in terms of fighting that ‘war’, as it were. On a broader level, thinks like taking care of the very environment that supports your economy is deemed a luxury. Long-term thought has been deemed weak (diplomacy, sensible energy policy, civil rights) while short term foolishness is justified by pointing to terrorists, liberals or worse. Luckily, the electoral policy will check diplomatic foolishness, the market is checking environmental policy, and the courts are checking the erosion of civil rights.
These are very simple things that require leadership – the world needs to cooperation between nations, we need a healthy environment to live and grow and we need rights because they’re goddam self-evident. Ideology is a poor buffet to replace, and we’re billing it to our children. War should be a last resort, environmentalism is not to be shrugged off as a hippie fashion, and we shouldn’t let terrorists scare us out of our liberty. Under the Bush administration, however, there has been no leadership on this issues – the direction has actually been backwards, into demagogy and fear. The times, thankfully, are a changing, and hopefully the global discourse will again hear some adult voices. Like, hey, maybe we could talk this out, clean this place up and be nice to each other. Crazy, I know.
After listening to the oral arguments and read the judgments in this case, one has to concede, despite all the hypocrisy of the USA, its institutions do work. The Constitution which promotes separation of powers, the Supreme Court, the Press – they all contribute to the ability of the system to remedy itself, even after 8 years of a corrupt, malevolent executive. The sad thing is that Sri Lanka doesn’t have those institutions, The Constitution is rubbish. The Public Security Ordinance(under which all those draconian Emergency Regulations are promulgated) came into effect more than 60 years ago(before anyone had even dreamt up a JVP or an LTTE) The structural protections just aren’t there. The system sucks.
The issue in the case though was a little more nuanced than you make it out to be. It was not simply a case of whether or not habeas would apply. In Rasul, the court had already held that there must be protections available that are equal to the protections under habeas review in the case a statute does away with habeas. The govt contended that the DTA statute was a sufficient alternative to habeas. The majority disagreed. I’m not trying to nit pick here, but I think it’s instructive that even the govt conceded that habeas like protections ought to be extended to these inmates. That’s how far the legal system has been able to correct itself after 8 years of unrelenting assaults on civil liberties.
yeah pretty crazy..