Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to separation of powers. . . .
The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system, they are reconciled within the framework of law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, part of that law.
So said the US Supreme Court in its decision, BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE
UNITED STATES, ET AL. where it ruled the Military Commissions Act’s Section 7 was unconstitutional and that Lakhdar Boumediene had a right to a habeas corpus hearing to decide whether he should face charges the US military said he was guilty. Lakhdar Boumediene’s case is a shining example of what American forefathers went through in their escape from an imperial England which brought them to the shores of America. Fleeing repressive government which arbitrarily meted out justice without any regard for the rule of law, even though there was some semblance of British common law in the magna carta, America’s founders established the right to habeas corpus for its citizens, which in turn the Supreme Court expanded to those present day America swooped up in its farcical war on terror.
Boumediene was one such casualty. Working in Sarajevo, Bosnia he was accused by the US of plotting to commit acts of terror against the US embassy there and arrested by Bosnian authorities who using their own judicial means established there was no merit to the charge. However, after being released by Bosnian authorities he was re-arrested by American forces and rendered to Guantanamo Bay where he was held for 7.5 years, without access to a legal system. Kept in isolation and tortured his only request was to know why he was being held. Finally when his case went before the Supreme Court it was ruled he had a right to habeas corpus review, which in turn quickly adjudicated him innocent, by a Bush appointee federal judge no less, of the charges levied against him by America just as he was in a Bosnian court.
What possessed America to hold him another 8 months after he was ordered release shows the contempt the Bush administration had for the very judicial process it abused in order to justify it’s WOT. One can only imagine how many others, similarly innocent languish in places like Gitmo Bay, Bagram, or any other base set up to house people deemed terrorist by an abusive and imperial executive out of control. Why this should even matter to the average American on the street is simple: the country has built up over a long history a very precise, intricate and detailed system of law to avoid the mistakes of the English who chased its downtrodden all over the world to deny them their rights and inevitably fight them when they asserted them. We should not and cannot sit by and watch them discarded by an abusive executive who decides unilaterally what laws it wants to abide by and which ones it doesn’t. The Supreme Court decision was clear in that regard.
The Framers’ inherent distrust of government power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. . . .
Where a person is detained by executive order rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. . . . The habeas court must have sufficient authority to conduct a meaningful review of both the cause of detention and the Executive’s power to detain. . . .
We haven’t begun to address the issue of Boumediene’s treatment while in captivity in Gitmo Bay and his assertion that he was tortured. Indeed the biggest torture of all was his unlawful imprisonment and isolation from the legal redress he was found by US authorities to be clearly entitled too but which he was denied for so very long. The fact that his imprisonment could not stand judicial review from TWO separate courts continents removed from one another is why the will of a whimsical executive must be challenged by the judicial checks and balances embedded in our system of government. Check out Boumediene’s interview with ABC news below. This should be one more nail in the coffin for the indictment of any and all officials in the Bush administration for international war crimes.