Constitutional Law Primer.

WARNING! The following post may be extremely boring. Do not attempt to operate heavy machinery after reading it (or if, you know, you're not licensed to operate heavy machinery).

Last post I said: The Supreme Court this week overturned a lower court's dismissal of an action by Guantanamo detainees to have their status as detainees reviewed by civilian courts instead of presidentially configured military tribunals.

The double negative: what's not to not like? Apparently a lot. When my very intelligent, rising Sewanee Senior son asked me to explain exactly what the heck I was talking about in the body of my last post, it occurred to me that I might coulda been clearer about what I was saying. It was technically accurate (except that the heading was originally "Trail and Error" instead of "Trial and Error". A "trial" error right from the start), but was too condensed and left out plenty of steps that I should have included.

I used to do some appellate work. I've argued appeals from Magistrate Court and worker's comp tribunals to Circuit Court; from Circuit Court and Family Court to the Court of Appeals and the South Carolina Supreme Court; and from Federal District Court of S.C. to the Federal Fourth Circuit Court of Appeals (one case, two appearances. If you are really hurting for reading material and need that last little soporific morsel to send you to dreamland, try reading Collins Holding Corp. v. Jasper County, 123 F.3d 797, 799 (4th Cir. 1997), a case I argued that is actually cited quite a lot) and I assumed that everyone would be familiar with the steps and language of appeals. Anyway, if someone as smart as my son didn't know what I was talking about, I knew that, in the name of brevity, I left out the most important stuff in my recitation of the course of the BOUMEDIENE v. BUSH.

Everybody has heard of the "Bill of Rights"- the first ten amendments to the Constitution specifically demanded by delegations of some of the States guaranteeing certain individual rights such as the right to be secure against unreasonable search and seizure (Fourth Amendment), right to an attorney (Sixth Amendment), right against self-incrimination (Fifth Amendment), etc., as a precondition to their delegations ratifying the Constitution? Well, a right even more fundamental than any of those is the right of Habeas Corpus. The right to petition the Court to demand why you are being held in jail is so fundamental, it didn't need to be tacked on to the Constitution in an amendment; it's in the body of the Constitution. Among the "tools" that Congress gave to the President to battle terrorism following 9/11, was to eliminate the rights of "enemy combatants", such as members of al Queda, to Habeas Corpus. That all sounds well and good: after all, they're members of al Queda, right? Problem is, a lot of the people detained in Guantanamo Bay, Cuba, by America, for years without trial, in some cases, claim they are not members of al Queda. Some of the people detained at GitMo, claim they aren't "enemy combatants" at all. The Statute under which they are detained says that the President gets to decide who is an "enemy combatant" (wonder if Bush considered calling John Kerry an "enemy combatant"?). If someone so characterized disagrees, his or her appeal is to a military tribunal. Hmm. A military tribunal, comprised of people who answer to the Executive Branch of Government instead of a judge or judges who answer to the Judicial Branch of Government? That's not habeas corpus.

Often, the person or entity who reviews your case is even more important than the facts or law of your case (hence the Judge Roy Bean video). Separation of powers/balance of powers, is one of the bulwarks we have in America to keep any particular person or group of people from forming a dictatorship. Until Marbury v. Madison, it wasn't clear that the Supreme Court, rather than Congress itself, got to decide the validity of acts passed by Congress. So, rather than just accepting a military tribunal's review of an "enemy combatant" determination, a bunch of GitMo detainees filed habeas corpus actions in United States District Court. The district court judge ruled that the Statute doesn't allow them to file habeas corpus actions in district court, and ordered the case to be dismissed, so the detainees filed an appeal from the District Court's order of dismissal to the U.S. Supreme Court. The Supreme Court considered their appeal, and ultimately REVERSED the Lower Court's ruling, finding that the portion of the statute under which those folks were detained which eliminated habeas corpus violated our Constitution. The detainees may still be found to be enemy combatants, in which case they won't be going anywhere; however, this was a major blow to Bush, because it will be someone outside of his branch of Government (the Executive Branch) who will be reviewing the determination. It gave the right to review a Executive Branch determination of whether someone was an "enemy combatant" back to the Judicial Branch of Government- which is what habeas corpus is all about. The Court split with Justice Kennedy writing the majority decision, or, as the case syllabus provides:

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concurring
opinion, in which GINSBURG and BREYER, JJ., joined. ROBERTS,
C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS,
C. J., and THOMAS and ALITO, JJ., joined.

A five to four decision is as divided as you can get, but it's good to know that the Supreme Court still has some teeth, and maybe this is still an America I recognize, after all.