Thursday, March 30, 2006

The Writ is the Writ

This week the Supreme Court heard oral arguments on whether or not the Bush administration may allow trials before military commissions, and whether or not the Court had any jurisdiction over the matter following legislation which stripped the courts of any power over the issue.

To narrow it for you, let me explain that Osama bin Laden's former driver will be tried before a military commission. If he is convicted of conspiracy, of which he is accused (and which is not considered a charge under the Geneva Convention), he will have a right of appeal to.... the President of the United States. Not a court. In other words, this is about the suspension of habeas corpus. People, this is some serious shit. Don't delude yourself into thinking that it doesn't effect you just because this is about "enemy combatants." Don't think for a second that the military doesn't accidentally pick up poor shmucks in the wrong place at the wrong time in Afghanistan, who have been sitting in Gitmo for years without being brought before a court.

Luckily, Justice Souter is on the case. The Times quoted him when he got pissy with Solicitor General Clement: "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." You tell him, Souter!

Here's what really gets me. In a piece that Morning Edition did the day of the arguments, one attorney for the government said that hey, in the 1800s, enemy combatants didn't have some of the rights they have now. So shouldn't they just be happy with what they have? Well, gosh, we used to have black people as slaves in the 1800s and they got their freedom. Then they had to get all uppity and demand civil rights. It's shameful that a government attorney would make the "they've got it better now than they did one hundred years ago" argument.

Morning Edition's Nina Totenberg covered the oral arguments, and there are a lot of good sound clips. Check it out. Proving that he has a losing argument, Clement tries to invoke 9/11. Infuriating.


  1. I love your law posts. And I love that it's right above the Tyra post.

  2. Anonymous5:35 PM

    Souter's strident utterings about the impregnability of our constitutional rights to the side, let us not forget that Justice Dave also voted to say that cancer patients who need marijuana must be left to die and that The Man can take away your house and give it to a corporation.

    With friends like these, does the Constitution really need enemies?