In today’s WaPo, George Will takes John McCain to task over Boumediene v. Bush: George F. Will – Contempt Of Courts.
He starts with an observation that I have seen elsewhere, but that bears repeating–McCain’s assertions that the decision was “one of the worst in the history of this country” is pretty myopic when one can choose from rulings like Dred Scott v. Sanford (1857) and Plessy v. Ferguson (1896), not to mention, if McCain is looking for political points, Roe v. Wade (1973).
Beyond that, I found the following paragraphs to be of central significance insofar as what it may say about McCain (as well as others who are upset about the case):
McCain, co-author of the McCain-Feingold law that abridges the right of free political speech, has referred disparagingly to, as he puts it, “quote ‘First Amendment rights.’ ” Now he dismissively speaks of “so-called, quote ‘habeas corpus suits.’ ” He who wants to reassure constitutionalist conservatives that he understands the importance of limited government should be reminded why the habeas right has long been known as “the great writ of liberty.”
No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments,1 a struggle in which the greatest event was the writing of America’s Constitution, which limits Congress’s power to revoke habeas corpus to periods of rebellion or invasion. Is it, as McCain suggests, indefensible to conclude that Congress exceeded its authority when, with the Military Commissions Act (2006), it withdrew any federal court jurisdiction over the detainees’ habeas claims?
As the conservative and libertarian Cato Institute argued in its amicus brief in support of the petitioning detainees, habeas, in the context of U.S. constitutional law, “is a separation of powers principle” involving the judicial and executive branches. The latter cannot be the only judge of its own judgment.
In other words, the notion that the executive branch should be the judge of the extent of its own power is a violation of the very notion of separation of powers.
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- Emphasis mine–and a thought worry of consideration. [↩]
June 17th, 2024 at 3:52 pm
You write:
That’s all well and good if we’re talking about domestic politics, or the rights of American citizens. But neither our politics nor our rights were at issue in Boumediene.
Boumediene involved aliens, captured on foreign soil, who were designated “enemy combatants” by Combatant Status Review Tribunals. The separation of powers principle requires the judiciary to avoid matters beyond its institutional competence, or its constitutional writ. A mere lawyer in a gown, General Kennedy is in no position to second-guess our field commanders.
If its history is any guide, the Administration will use Boumediene to increase both the number and speed of our renditions. General Kennedy hasn’t helped the detainees; he’s doomed them.
June 17th, 2024 at 5:43 pm
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