35A Vane Attempt


"Don't Need a Weatherman To Tell Which Way the Wind Blows" 

A Series of Innocuous Blogs for Vainglorious Edification.

“Combatants” by Another Name
June 16, 2008

"Confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."  Alexander Hamilton, Federalist Paper no. 84

In our previous commentary (An Ethical Environment; June 4, 2008) we noted the contradiction between those who would compromise the rights of individuals against an arbitrary concept of common good.   There we argued that the suspension of moral codes to protect the common “good” would result in a spiritual blight upon a pristine landscape.  In the recent Supreme Court decision Boumediene v. Bush, a very similar principle applies.  The Court ruled in a 5-4 decision that the Bush Administration, the Executive Branch and by inference the Government of the United States has wrongfully detained prisoners and denied them the Constitutionally protected right of habeas corpus.

The U.S. Government has held some 275 political prisoners since 2002 at the Guantanamo Naval Base primarily by suspension of the right of habeas corpus.  The very right the Constitution guarantees shall not be suspended except during invasion or rebellion (neither of which afflicts these United States.)  Prisoners at Guantanamo were to be tried under a patchwork military tribunal invented by Congress and Bush to circumvent previous Supreme Court rulings.  Prisoners were to be accused by secret evidence, not allowed to review that evidence and denied hearings by an independent civilian judge.  The Bush Administration and a shamefully complicit Congress have manipulated laws time and again to keep the accused locked away in a legal black hole.  But now that hole has been smashed.  The Administration, limping toward the exit door and faced with a Democratic majority, has run out of legal chicanery to deny its “enemy combatants” due process.

While the Administration has long held that the detainees at Guantanamo are a dangerous terrorist threat, the Supreme Court of the United States says they are wrong.  Or if they are not wrong to come out in the open and prove it - as with any other system of justice.  But this is a secretive Administration, one perpetually afraid of the bright light of disclosure.  They have long hidden behind the single most corruptible claim of government today - that of “national security.”  The claim to national security can shield government from scrutiny of moral or legal malfeasance.  But as Justice Kennedy writing for the majority responds, how secure is a nation that tramples its own Constitution? 

“Capable intelligence agencies and military forces are not the only considerations in defending national security... Security subsists, too, in fidelity to freedom's first principles. Chief among those are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers."  Justice Kennedy

Kennedy and the majority wisely empower the concept of separation or “diversity,” of three branches of government, aka “the balance of power.”  Much like our discussion of environment and ethics, the Supreme Court’s Boumediene v. Bush, reaffirms the futility of a nation secured by the elimination of civil rights.  The Nazi Party of 1930s Germany suspended civil rights purportedly to strengthen national security.  But in that instance the detainees were not called “enemy combatants,” rather,  they were called… Jews.