Thursday, March 30, 2006
Poppy Must Be Saying, 'Uh-Oh'
I'm starting to develop a small, tasteful crush on Supreme Court Justice David Souter.
In my little world, a crush is an expression of sensibility, and Justice Souter is turning out to be my kind of guy, Constitutionally speaking. So don't expect me to go to DC to stalk him and try to jump his bones. We're talking principle here.
First there was that flap with the Chief Justice over the red herring Roberts was attempting to insert into the argument in Georgia v Randolph. Now there's the whole question of habeas corpus under discussion as the justices discuss the challenge to the Bush Administration's plan to try Osama's former driver before a military commission.
Now for those of you who haven't developed an addiction to Law and Order and its myriad spinoffs, habeas corpus is fundamental to the law. Loosely translated as "you gotta da body?" it refers to a standard for confining someone for probable transgressions against us the people. No compelling evidence, no incarceration.
The case now before the court wants to hold Salim Ahmed Hamdan on charges of conspiracy. Congress has supposedly taken the case out of the track to the Court, and to federal courts in general. They want to use a military commission, which does not afford defendents the same protections as civilian defendants enjoy. Only, whoops--military law doesn't do conspiracy. Conspiracy is not recognized as a war crime. Federal courts, the Administration and its lackey Congress have argued, have no jurisdiction in the matter.
Solicitor General Paul Clement wants to have it both ways: to treat Hamdan as an enemy combatant and therefore use the military commission format, and to try him for an offense not recognized by the military... and to get away with it by keeping the case out of the Court's purview.
As the Court sorted through whether or not to assert its jurisdiction over the matter, Souter questioned Clement on whether Congress' removal of the federal courts' jurisdiction to hear habeas corpus petitions from detainees at Guantanimo amounted to suspending the writ of habeas corpus.
What's the big deal about suspending habeas corpus? It's limited to "cases of rebellion or invasion" in the Constitution. It's the means by which prisoners can go to court to challenge the lawfulness of their confinement. Suspending habeas corpus is therefore a legally drastic step.
Of course, the Bush Administration considers provisions of the Constitution simply to be obstacles, not legal constraints. Solicitor Clements therefore replied that if habeas corpus had been suspended, Congress had simply "stumbled upon a suspension of the writ..." given the "exigencies of 9/11."
Souter (becoming Constitutionally hunkier by the nanosecond) admonished Clements for implying that Congress might be permitted to suspend habeas corpus "inadvertently."
Clements replied, "I think at least if you're talking about the extension of the writ to enemy combatants held outside the territory of the United States--"
"Now wait a minute!" Stud-Muffin Souter interrupted him. "The writ is the writ. There are not two writs of habeas corpus, for some cases and for other cases. The rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus."
I apologize to David Souter. I thought he was a wimp when Poppy Bush nominated him. Guilt by association. In fact, I think he's smart, and adorable, too.
Let's hope he's taking his vitamins. We need him.
What are you up to these days? I miss you :(
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