Rule of Law Triumphs

The United States Supreme Court ruled that those held in Guantanamo have the right to a petition for a writ of habeas corpus. At first blush one can raise an eyebrow and ask why would we allow potential terrorists to question the legality of their incarceration. The answer is simple: Our Constitution grants the right of habeas corpus to all. But whether those held outside of the United States, albeit by the US Military, fall under the provisions of this constitutional right is the point on which the Court does not agree.

A basic question that the Court grapples with is whether Congress in fashioning a means for those held in Guantanamo to challenge their detention is adequate and meets the need for due process. Five justices say it is not sufficient and Chief Justice Roberts in his dissent disagrees with this conclusion.

By extending the right to those whom our government says wish to destroy us, we our protecting ourselves as well. One of the most precious rights granted under the Magna Carta was the right to have the king or anyone else who held a person in custody be required to prove to an impartial judge that the custody was legal. The court must be convinced that there is probable cause to believe the person has violated the law. But does this right apply to those not held on United States soil in American prisons?

The decision in Boumediene v. Bush was 5-4. Chief Justice Roberts along with Justices Scalia, Alito, and Thomas dissented. Because of the complexities involved, one needs to read not just the majority opinion but the dissents by Chief Justice Roberts and by Justice Scalia as well.

You can read the entire opinion and the dissents here: http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf