A Victory for the Rule of Law

President Bush's "war on terror" prisoners cannot be locked away indefinitely and barred from ever going to American courts to appeal their confinement. That's the short version of today's Supreme Court 5-4 ruling in the case of Boumediene v. Bush.

The Court said, in no uncertain terms, that the president and Congress do not have the power to deny habeas corpus rights to prisoners in Guantanamo and elsewhere. The Constitution clearly says, "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," and the Court found that the current situation just doesn't rise to that level.

"The real risks, the real threats, of terrorist attacks are constant and not likely soon to abate," Anthony Kennedy said. "The ways to disrupt our life and laws are so many and unforeseen that the Court should not attempt even some general catalogue of crises that might occur. Certain principles are apparent, however. Practical considerations and exigent circumstances inform the definition and reach of the law's writs, including habeas corpus. The cases and our tradition reflect this precept."

The majority was careful to note that the opinion does not mean that prisoners can immediately demand a habeas hearing. Rather, Kennedy said quite reasonably that the Executive Branch has some leeway - just not six years of it: "Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee's status before a court entertains that detainee's habeas corpus petition."

Of course, not all of the justices agreed. Antonin Scalia penned a particularly hysterical dissent in which he supported taking our hard-won freedoms and tossing them in the trash in the name of security. "America is at war with radical Islamists," he cried, reeling off a list of terror attacks in the US and abroad culminating in 9/11. And just to be sure the message got across, he warned that the Court's decision "will almost certainly cause more Americans to be killed."

"The Nation," he warned darkly, "will live to regret what the Court has done today."

This is standard operating procedure: warn that any hint of dissent, any rejection of infinite presidential power, will result in American deaths. But those scare tactics don't work anymore, as polling consistently shows that people don't believe a word of it.

The rule of law has survived the Alien and Sedition Acts, the Civil War, red scares and Richard Nixon. It will survive radical Islamic terror as well. What the Supreme Court said in plain English is that it also needs to survive President Bush's "trust me or the terrorists win" approach to fighting terror.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Kennedy wrote. "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law."

Well put.