Arts & Ammo

Suspend the Writ

Andrew McCarthy advances a pragmatic and much needed solution to the judicial usurpation of power in Boumediene. Suspend the writ of habeas corpus.

“What?” you shudder. Have you lost your mind? Has this Bush-whacky Constitution-shredder finally gone off the deep end?

No. Not even a little. I’m not talking about suspending the old writ of habeas corpus, the one that protects all Americans inside the United States.

I’m talking about suspending the new writ invented on June 12, 2008. The faux writ that Justice Anthony Kennedy and his four associates in the Boumediene majority weaved out of whole cloth. The writ that runs only to the protection of America’s foreign enemies in a war Americans overwhelmingly support. The writ that purports to extend the jurisdiction of the courts – which is to say, the rule of judges – anyplace on the planet where the federal government acts and where the American military fights.

I am talking about restoring the separation of powers and the proper, limited role of the United States courts.

Let’s all refer to our copies of the Constitution, Art. III, section 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Art. I, section 8 lists among Congress’s enumerated powers “To constitute Tribunals inferior to the supreme Court” and “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

The Court in Boumediene, however, decided that it has the power to alter Congress’s rules concerning the conduct of warfare and to delegate the making of new rules to the (inferior) district courts. Not content with arrogating to themselves decisions about how to conduct warfare, who the enemy is, where the battlefield is, and how the troops should go about their business,

. . . Justice Kennedy & Co. also undertake to dump the whole mess on the very federal district judges Congress cut out of the equation – as it was Congress’s perfect right to do – in the 2005 Detainee Treatment Act and, more emphatically, in the 2006 Military Commissions Act.

While McCarthy’s suggestion may sound radical, it is not. He simply suggests that Congress exercise its rightful authority to say that the Writ of Habeas Corpus is today precisely what it was for the 219 years preceding Boumediene, and that it is suspended only to the extent it was recklessly expanded by the Court.

Returning to the Constitution: “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.” Art. I, section 9. (We can leave for another day the interesting use of the word “privilege” as opposed to “right.”)

So does Congress have the authority to suspend the writ? Is this really a case of rebellion or invasion? McCarthy points to 9/11 as sufficient grounds. I would also argue that if Boumediene’s extension of habeas corpus is based on the United States’ de facto sovereignty on foreign soil, then rebellion and invasion can also be found in the same foreign territory. Justice Kennedy also relies on the fact that Congress has not suspended the writ, and were Congress to do that, one leg of Boumediene would be eliminated.

The judiciary has enjoyed free reign for most of the past century. It has seen itself, in a gross over-extension of Marbury, as the only authoritative branch of government, and the other branches have done nothing to counter that impression. Suspending the writ on foreign soil would provide an excellent object lesson concerning the court’s overreaching, perhaps begin to turn the tide away from judicial oligarchy, and help restore a proper balance of power.

McCarthy’s article deserves a careful read.

July 23rd, 2008 Posted by Fitzroy | Law | one comment