George Will — lauded as “the right’s most enduring elder statesman” by Jacob Heilbrunn in the New York Times last weekend — had a very good column yesterday about the Supreme Court’s Boumediene decision. Will drips scorn on John McCain’s proclamation that this ruling, which should shut down the prison camp at Guantanamo Bay, is “one of the worst decisions in the history of this country.” After asking just how we’re supposed to take that assertion, Will gets to the meat of the matter:
McCain, co-author of the McCain-Feingold law that abridges the right of free political speech, has referred disparagingly to, as he puts it, “quote ‘First Amendment rights.’ ” Now he dismissively speaks of “so-called, quote ‘habeas corpus suits.’ ” He who wants to reassure constitutionalist conservatives that he understands the importance of limited government should be reminded why the habeas right has long been known as “the great writ of liberty.”
No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America’s Constitution, which limits Congress’s power to revoke habeas corpus to periods of rebellion or invasion. Is it, as McCain suggests, indefensible to conclude that Congress exceeded its authority when, with the Military Commissions Act (2006), it withdrew any federal court jurisdiction over the detainees’ habeas claims?
Predictably, National Review is outraged by Will’s heresy, with Ed Whalen, Andrew McCarthy, and Mark Levin piling on. What’s notable about their reaction, aside from its vehemence, is how much question-begging the NROniks indulge in: Levin writes of, “alien, unlawful, enemy combatants” seeking habeas corpus; McCarthy refers to “alien enemy combatants whose only connection to the United States is to levy war on her.” Apparently, even military tribunals, let alone proper trials, aren’t necessary to determine the guilt of these detainees — they’re guilty, they’re enemy combatants, simply because they’ve been picked up. They were “arrested,” weren’t they? Will, on the other hand, is realistic:
The purpose of a writ of habeas corpus is to cause a government to release a prisoner or show through due process why the prisoner should be held. Of Guantanamo’s approximately 270 detainees, many certainly are dangerous “enemy combatants.” Some probably are not.
For a long time, conservatives have been told that they have to vote for budget-busting, nation-building Republican presidential nominees for the sake of getting good judges. But it turns out that, while opportunities to overturn Roe never materialize, and one can never be absolutely sure how a conservative Republican Supreme Court justice will vote if a chance does arise, occasions for expanding or entrenching the arbitrary power of the president are plentiful, and the “conservative” justices can be relied upon to fall in line. The one thing that all of Bush’s actual or wished-for Supreme Court appointees have in common — Alito, Roberts, Miers, Gonzales — is that you can bank on their truckling to ill-defined and expansive presidential “war powers.” If you don’t believe that the U.S. president has the right to kidnap anyone in the world at any time for any reason and hold the detainee indefinitely and without charges, voting for Republicans for the judges is the last thing you should do.
Good for George Will, whatever his flaws, for refusing to toe the Republican mark on this.