Friday, June 13, 2008

Habeas for all or habeas for none

I'd like to make one point about yesterday's ruling by the Supreme Court on habeas corpus. A lot of media outlets are reporting this with headlines along the lines of "Supreme Court upholds habeas rights for detainees."

This is wrong.

Yes, the immediate beneficiaries of this decision are the detainees in Gitmo and yes, it was those detainees who brought the case in the first place. But habeas is a right of everyone that is not divisible. That means it is not a right you can selectively grant to some people but not to others. That, I believe, was the essence of the majority opinion.

If the government is allowed to say these people over here have habeas rights while those people over there do not that means that government is putting itself in the position of being the ultimate arbiter of habeas rights. The Court apparently rejected that notion (especially since it was The Court that traditionaly is the ultimate arbiter on this question). If The Court were to have ruled the other way that would have effectively destroyed habeas for everyone. If habeas rights can be selectively applied then any time you try to exercise them you have to first convince a government bureaucrat that you have the right in the first place.

Put simply, habeas is a right that must exist for everyone if it is to exist for anyone. So yesterday's decision did not uphold habeas rights for the detainees. It upheld the habeas rights for me, for you, for your cousin Rory and for that nutball down the street who likes to walk around with "Jesus Saves" sandwich boards.

Everyone or None. Those were the only choices.

Thank God they made the right choice.


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