A return to the rule of law

Which side of the fence are we on?

Today, President Obama issued an executive order to begin the process of closing down the Guantanamo Bay "terrorist prison." That means that each detainee that is currently held there will be entered into the official, legal, constitutionally-defined justice system of the United States.

The Bush administration had used the prison as a means to circumvent our system of justice, claiming that, since the prison is not on US soil, the legal rights proscribed in the Constitution of the United States (habeas corpus) do not apply to those held there. It's a dubious legal argument with the stink of Alberto Gonzales all over it and it has since been shot down by the Supreme Court.

(The Declaration of Independence states that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights...” No exceptions.)

The Bush administration's motives for pursuing this appalling attempt to redefine the Constitution now seems transparent: it was attempting to protect itself from potential criminal prosecution for illegal detentions and the mistreatment of detainees. Well, we'll see how that works out for them.

Hold-over Bush apologists will argue that the persons detained at GITMO and other "black sites" (which are included in President Obama's executive order) are "the baddest of the bad guys", and that this move to bring them into our system of justice is somehow compromising the security of the United States. That seems questionable considering the dubious circumstances by which some of these detainees were imprisoned in the first place.

"But," a Bush apologist might say: "911 changed everything." That doesn't wash either.

• On April 12th, 1861, a rebel army attacked and seized a federal installation in Charleston harbour, instigating a civil war that raged for four years and resulted in some 600,000 deaths.
• On December 7th, 1941 the Empire of Japan attacked United States military forces with no declaration of war and destroyed a significant part of the American fleet.

Were either of these events less threatening than the attacks of 911? I'd argue that each was more threatening, as they imperiled the very existence of our nation.

But, more than that, protestations about a need for extraordinary (unconstitutional) legal practices stem from a fundamental lack of faith in our Constitution. As President Obama said in his inaugural address:

As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake. --President Obama, January 20, 2009

And this, it seems to me, is what the Bush apologists have forgotten, or have never understood. The Constitution is the supreme law of the land. It was written to apply not just in times of peace and prosperity, but also, and most especially, in times of danger and hardship. The Constitution is our safeguard. It prevents any of us from being overrun by the passions of the historical moment.

Works for me...

I have faith that the Constitution is robust enough to deal with any disaster or security threat that might arise. From time to time, we should examine it and amend it. But there is a process for that, too. And, until such time as it is amended, if we are to live in a nation of laws, it must be the supreme law of the land.

As Justice Anthony Kennedy wrote in the majority opinion of June 12, 2008 that declared that foreign detainees at GITMO have the right to appeal to US civilian courts, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."