The Supreme Court—yes to “habeas corpus”—Scalia and Roberts were wrong!

By Mahmoud S. Audi, Ph.D.

I started writing this article soon after the US Supreme Court passed a landmark decision, on Thursday, the 12th of June, 2008. But I couldn’t finish it because I needed the time to plan for my overseas vacation. Now I am back and free from the jetlag syndrome, I am ready to write, to inform, and to challenge you with my opinions.
In essence the Supreme Court ruling says no, to the suspension of the habeas corpus—the release of a person from unlawful constraint. Our government has been trying to exclude the detainees at Guantanamo Bay prison from the benefits of habeas corpus. The Supreme Court, in effect, said, five judges in the Majority and four in the Minority, no, to the government, you can’t do that. My opinion on this matter is very simple, although I am not writing to say that, because my knowledge of legal matters is as good as the knowledge of Judge Scalia about engineering matters. I am writing to show that Justice Scalia whose intellect and judicial prowess I respect and Chief Justice Roberts were wrong.
Justice Scalia was one of the four in the Minority Justices, which included Chief Justice Roberts, and Justices Alito and Thomas, offered one of the two Minority opinions. The other Minority opinion was written by the Chief Justice himself.
The Chief Justice said that the decision of the Majority represented “overreaching” and left the court open to “charges of judicial activism.” Mr. Chief Justice, please read what Justice Scalia said. Let me help you. He said that the decision was not based on principle “but rather on inflated notion of judicial supremacy.” Is this a judicial statement or a political attack on the Majority Justices? Also read what he said: “the nation will live to regret what the Court has done today.” This could not be the judgment of a Justice of the Supreme Court. Instead, it sounds like what prophets say and do, or what the politicians say to frighten their constituents. Scalia prophesied that “devastation” and “disastrous consequences” from the decision of the Majority. This is the voice of an alarmist, not a Justice of the Supreme Court.
We need justices who are not prophets and who are not politicians. We need Justices who read the constitution, understand and apply it. We need Justices who leave the political work to the politicians but make sure that they do not break any law. We need justices who worry about the legality of the legislations of the legislators, and leave the worry about our security to the executive branch of our government.
On the other hand, what did the Majority say? Justice Anthony Kennedy wrote the Majority opinion. He said “The laws and constitution are designed to survive, and remain in force, in extraordinary times.” So, extraordinary times, like the attacks on 9/11 do not necessarily require suspending our laws. Instead, these times require vigilance in applying the laws, and preserving the constitution.
Going back to the decision, which gave the foreign detainees at Guantanamo Bay prison “constitutional rights to go to federal courts to challenge their continued detention,” and see if it makes sense. Well, our current government has anointed itself as the promoter and guardian of democracy and freedom throughout the world, specially the world from which these detainees had come from. So, why not start by applying what we preach to the people we have been holding as prisoners for a very long time. Give them the constitutional protection which we all enjoy, and be magnanimous. If our government applies what the Supreme Court has decided, and treats these detainees with our grace, then it may improve—probably a tiny bit—its credibility in the world.

On the 2008 presidential campaign: Obama went with the Majority ruling; he wins a point; McCain went with the Minority Justices; he lost a point! Please do not ask me about the total score; I keep losing my score book!