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June 19, 2008

The Supreme Court Gets One Right

David R. Henderson

Imagine that you're a non-U.S. citizen living outside the United States. A U.S. government official decides that you're an enemy of the United States, captures you and takes you to a prison outside the United States. You're not wearing the military uniform of a country on which the United States has declared war. In fact, the United States is formally not at war at all because the only way it can be, according to the U.S. Constitution, is if the Congress declares war, and the Congress has chosen not to.

Question: How does the government know that you're guilty? Is it possible that the government has made a mistake and that you're innocent? This is usually determined only after the government presents its evidence and then charges someone with a crime. Then that person gets to defend himself. That's the purpose of habeas corpus. The term means literally, "We command that you have the body." Its meaning in practice is that a government that arrests someone and imprisons him must charge him with a crime and then allow him to defend himself. The 19th-century English legal scholar A.V. Dicey, whom, incidentally, the late Milton Friedman loved to quote, wrote that habeas corpus acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty."

Using a court system to establish guilt or innocence is not perfect; in fact, it's incredibly imperfect. In legal cases, the ability to argue well counts a lot. Economist Gordon Tullock once asked me, "If you were trying to decide the truth of an issue, would you get one really good debater on each side?" I told him that I honestly didn't know, but years later, after I tried having my students debate various controversial policy issues, I saw Tullock's point. I concluded that the winner in a debate is often the bright person who is glib and who glosses over important issues.

But here's one thing I am sure of: even that imperfect system is better than letting the government be unaccountable. Governments are made up of humans, and very few humans are willing to admit mistakes. So, if a government official has imprisoned someone for years, he's unlikely to admit that the imprisonment was unjustified. Although my students' debates were not the ideal way to judge truth, would it have gone better if I had let just one side debate? This is why I think the June 12 Supreme Court decision in Boumediene v. Bush was the right one. The Court held, by a 5-4 vote:

"Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause's protections because they have been designated as enemy combatants or because of their presence at Guantanamo." (Boumediene et al. v. Bush, President of the United States, et al., p.3)

Now, like me, you're probably not a constitutional lawyer. But the fact that you're reading this establishes that you do have one important skill that can help you judge whether the Supreme Court made the right decision: you can read.

Read what the U.S. Constitution says about habeas corpus: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." (Article One, Section 9)

That seems pretty clear doesn't it? There are two conditions, both of which must be satisfied, under which the U.S. Congress is allowed to suspend habeas corpus. The first is that it must be during a rebellion or invasion; the second is that the public safety may require it. I can't be sure whether the public safety requires suspending habeas corpus for prisoners at Guantanamo Bay, but I doubt it. However, I do know that there's no invasion or rebellion. And all nine justices of the Supreme Court know it too.

What's interesting is how some prominent critics of the Supreme Court decision have made their case by begging the question: that is, they have assumed as true what is to be proven. Berkeley law professor John Yoo, for example, writing in the June 17 Wall Street Journal, stated:

"Incredibly, these five Justices have now defied the considered judgment of the president and Congress for a third time, all to grant captured al-Qaeda terrorists the exact same rights as American citizens to a day in civilian court." (Yoo, "The Supreme Court Goes to War," Wall Street Journal, June 17, 2008, p. A23)

How does Mr. Yoo know that the prisoners at Guantanamo are al-Qaeda terrorists? He doesn't. Instead, he seems to have total faith in the U.S. government's ability to capture the guilty and release the innocent. Interestingly, as I pointed out in an earlier article, Mr. Yoo does not have the same confidence in government officials when he is the one being charged. Mr. Yoo wrote, "Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention." His clear implication is that Boumediene was captured fighting against the U.S. But he wasn't, as Mr. Yoo must well know. Instead, what happened was that in January 2002, the Supreme Court of Bosnia ruled that there was no evidence to hold Boumediene and five other men and ordered the charges dropped and the men released. American forces in Bosnia were waiting for the six men upon their release from Bosnian custody and transported them to Guantanamo. In other words, they weren't captured fighting the U.S. Instead, they were captured leaving a Bosnian prison. Sounds a little different from what Yoo said, doesn't it?

Similarly, Republican presidential candidate John McCain stated that the Supreme Court's decision in Boumediene v. Bush was "one of the worst decisions in the history of this country." He added, "[W]e made it very clear that these are enemy combatants." But how does he know? What crystal ball does he have that tells him they are combatants?

Even more shockingly, Supreme Court Justice Antonin Scalia argues against habeas corpus for Guantanamo prisoners by presuming their guilt. Here's the opening sentence of Justice Scalia's dissent: "Today, for the first time in our Nation's history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war." How does Mr. Scalia know that they're enemies? What makes this shocking is that Mr. Scalia has a well-paid staff that checks facts and he nevertheless called people enemies whom he does not know are enemies.

Ironically, in the way they argue against habeas corpus for Guantanamo Bay prisoners, Yoo, McCain, and Scalia implicitly make a strong case for habeas corpus. One of the major purposes of habeas corpus is to protect people from arrogant government officials who have trouble admitting mistakes. Yet, in making their case, all three arrogantly presume that the prisoners at Guantanamo Bay are guilty. If anything should convince us that we need a habeas corpus check on arrogant government officials, it is the arrogance of these three: former Justice Department employee John Yoo, Sen. John McCain, and Supreme Court Justice Antonin Scalia.

Copyright © 2008 by David R. Henderson. Requests for permission to reprint should be directed to the author or Antiwar.com.

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David R. Henderson is a research fellow with the Hoover Institution and an associate professor of economics in the Graduate School of Business and Public Policy at the Naval Postgraduate School. He is author of The Joy of Freedom: An Economist’s Odyssey and co-author, with Charles L. Hooper, of Making Great Decisions in Business and Life (Chicago Park Press.) His latest book is The Concise Encyclopedia of Economics (Liberty Fund, 2008.)

He has appeared on The O’Reilly Factor, the Jim Lehrer Newshour, CNN, and C-SPAN. He has had over 100 articles published in Fortune, the Wall Street Journal, Red Herring, Barron’s, National Review, Reason, the Los Angeles Times, USA Today, and the Christian Science Monitor. He has also testified before the House Ways and Means Committee, the Senate Armed Services Committee, and the Senate Committee on Labor and Human Resources. Visit his Web site.

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