(barely a) Victory For Justice!

By a ruling of 5-4 the Supreme Court has decided that the oldest right of citizens in Anglo-American judicial tradition still exists.

Make no mistake, this is really great news. And I don't mean for the detainees. It certainly is good news for them, but really I don't care that much about them directly. Maybe that's cold but to be honest, I don't know them personally, and there are thousands of people detained and brutalized throughout the world, many in conditions far worse. The reason this is so exciting is that it is great news for America. The right of habeas corpus is a cornerstone of limited government.

Simply put, habeas is the right for a prisoner to demand the government prove to a judge that it has the right to detain him/her. The government must state the charges or other legal basis on which the prisoner is being held, and show that they have probable cause to so charge the prisoner. The threshold for evidence here is not high. The government doesn't need to prove facts sufficient to convict the prisoner. They only need to show admissible facts sufficient to charge him/her.

Basically, habeas is what keeps the government from just picking you up off the street and throwing you in jail. Filing a writ of habeas is the judicial process equivalent of saying "Hey, what did I do? Charge me with something or let me go!" The government can't just throw you away because they think you did something, or maybe you might do something bad later, they have to be able to prove you broke the law. Without this right, the government could just keep you in jail forever and never charge you with anything. It's so fundamental for the preservation of liberty, it's one of the very few rights that are actually in the body of the Constitution (rather than in an amendment).

What's really disturbing is how damn close we came to having this right destroyed. Looking at the flow chart (click on "Graphic" in the left bar) of the case, the court has consistently ruled against the Bush administration, and each time they have gone back to Congress which gave (or tried to give) more unlimited detention rights to the government, passing new laws in November 2005 and September 2006 to try and strip the courts of jurisdiction. These were both acts of a Republican congress, but both were enacted with significant Democratic support (especially in the Senate, where the Democrats could have stopped it if they had the stones to filibuster it).

So the executive branch has been hell bent on unlimited detention and the legislature has been eagerly trying to deliver it. When it got to the Supreme Court, four of nine justices thought that unlimited detention would be A-Ok. If Justice Kennedy had gone the other way, we would be that much closer to a police state.