Today's Stories

June 17, 2008

Conn Hallinan
The Brain Trauma Vets

June 16, 2008

Uri Avnery
An Apology

Corey D. B. Walker
The Racial Politics of Symbols

Howard Lisnoff
Files Upon Files

Dennis Loo
2008 Elections: Of Whales and Worms

Paul Craig Roberts
Obama and the Fall Into Tyranny

June 13 / 15, 2008

Douglas Valentine
McCain: War Hero or Go-To Collaborator?

Alexander Cockburn
Change, What Change?

Jeffrey St. Clair
The Politics of Timber Theft

Peter Linebaugh
On Wat Tyler Day

Ishmael Reed
The Colossus: Sonny Rollins, Take One

Joe Bageant
Old Dogs and Hard Time

Harry Browne
Ireland Shows the Way!

Andy Worthington
The Supreme Court's Gitmo Decision: What Does It Mean?

Jeff Sharlet
The F-Word

Binoy Kampmark
They Gassed Us: Agent Orange in OZ

Alan Farago
His Little Piece of the Pie

Brian Cloughley
America the Detested: the Pakistan Airstrikes

Manuel Garcia, Jr.
How to Stretch Gasoline

Reza Fiyouzat
Oil and Racism

Patrick Bond /
Richard Kamidza
How Europe Underdevelops Africa

David Yearsley
Music in the Rubble

Niranjan Ramakrishnan
Thank You, Dennis Kucinich!

Ronnie Cummins
Don't Panic; Go Organic

Dan Bacher
Bush Tries to Raid Salmon Disaster Funds

Michael Dickinson
Jesus in Megiddo Prison

Seth Sandronsky
My Father's World

Poets' Basement
Tu Fu / Rexroth

Website of the Weekend
Torture and the American Psyche

June 12, 2008

Judith Levine
As Cranes Fall and People Die

Patrick Cockburn
Amid Iraqi Fury, U.S. Offers Concessions on Military Bases

Saul Landau
The Iraq War Becomes Suicidal

Christopher Brauchli
Bush Bling-Bling: Government by Crony

Norman Solomon
Deadly Diplomacy

Helen Redmond
Why Can't We All Get KennedyCare?

Laura Carlsen
No Rest for the Working Poor

Jeremy R. Hammond
Threats Against Iran Escalate

Anne Landman
Pinkwashing: Can Shopping Cure Breast Cancer?

Website of the Day
Fire in Watts

June 11, 2008

Paul Craig Roberts
Why Oil Prices Are So High

Ralph Nader
Wall Street Gamblers

Joshua Frank
Why I Can't Support Barack Obama

Clifton Ross
Conversation in Miami: the Neoliberal Left and Socialism

Muhammad Idrees Ahmad
Whatever Happened to "Democracy Now?"

Stephen Lendman
Exposing Pentagon and CIA Corruption

Diane Farsetta
Talking Back to Bill O'Reilly

Ron Jacobs
The Sixties Painted Black

Deborah Rich
Hay Belly Nation: the FDA and the O-Word

Hop Wechsler
A Friend of Women? My Bill Clinton ... and Ours

Website of the Day
A New Path to the Waterfall

June 10, 2008

Alan Farago
John McCain and the Company He Keeps

James G. Abourezk
Deadly Fallout From Obama's Groveling Before Israel Lobby

Saree Makdisi
Banned in the U.S.A. (Almost)

Malini Johar Schueller
A Picture From Beirut

John Ross
Killing Foods, Killing People

Wajahat Ali
Rumi and Sufism

Peter Morici
Bernanke Aggravates Recession Risks

Jordan Flaherty
Inside Angola Prison, Louisiana's Last Slave Plantation

Gary Macfarlane
Collaboration on the Clearwater: Is It Legitimate?

Joanne Mariner
The Gitmo Trials: an Inglorious Start

Website of the Day
The End of the Clinton Machine?

June 9, 2008

Uri Avnery
No, I Can't: Obama, Israel and AIPAC

Nikolas Kozloff
McCain & the Republican Insitute: Promoting Iraqi Occupation for "a Million Years"

Allan Nairn
Drawing Your Last Breath Hungry

Dennis Loo
Threats on Iran and the "Batterer's Defense"

Harry Browne
Irish Euro Vote Comes Down to the Wire

C. Hand
U. S. Bid to Hike Iran's Gas Prices Seems Doomed

Peter Morici
An Unsustainable Trade Deficit

Kenneth Couesbouc
A Ripe Time for Inflation

Martha Rosenberg
The Inconvenient Senator Grassley

James L. Secor
Chinese Superstition or Unconscious Oracle?

Website of the Day
Pay Bo Diddley!

June 7 / 8, 2008

Alexander Cockburn
Obama Goes Over the Top

Ishmael Reed
How Miles Davis Changed My Life

Jeffrey St. Clair
What a Miner's Life is Worth

Nikolas Kozloff
Meet the King the Beers: John McCain and Latin America

Dave Lindorff
The High Cost of a Single War-Like Remark: Oil Prices, Israel, Iran and the U.S.

Robert Fantina
When Truth is the Casualty

Conn Hallinan
Iran and Rumors of War

Neve Gordon
The Occupation and the Politics of Death

Tom Barry
The Deterrence Strategy of Homeland Security

Patrick Irelan
Raiding the Packing House

Tim Wise
Your Whiteness is Showing

David Ker Thomson
The Hard Question

Joshua Frank
"Socialist" Wins Republican Nomination in Montana

David Yearsley
Disaster Music

James T. Phillips
1968: Year of the Rat

Joe Allen
The Real Bobby Kennedy

P. Sainath
Making Life Brighter in Kondapur

David Macaray
Should Unions be More Democratic?

B.R. Gowani
Experience and the Two-for-One

Fred Gardner
What Happened (at the DA's Office)

Peter Harley
Technology to the Rescue? Kurzweil and the Human Machines

Michael Dickinson
Surrender the Bones of Geronimo!

Jen Roesch
Where are the Real Women in Sex and the City?

Poets' Basement
Gibbons, Landau, and Buknatski

Website of the Day
Partying with the Waltons

June 6, 2008

Frank Barat
An Interview with Ilan Pappé and Noam Chomsky on the Future of Israel / Palestine

Patrick Cockburn
U.S. Extorts Iraq to Approve Military Deal

Gary Leupp
Cheney Enrages Iraqis Over Security Deal

James Abourezk
Name That Terrorist

Peter Morici
Recession Grips the Jobs Market

Faheem Hussain
What is NATO Doing in Afghanistan?

Andy Worthington
Guantánamo's Britons Go on Hunger Strike

Ayesha Ijaz Khan
How Will Musharraf Go? Impeachment or Safe Exit?

Dave Lindorff
Congress Needs to Defend Itself

Website of the Day
Backstage with Bo Diddley

June 5, 2008

Patrick Cockburn
Bush's Secret Deal Would Ensure Permanent U.S. Occupation of Iraq

Sharon Smith
Hillary's Wreckage

Nikolas Kozloff
Obama's Electoral Dilemma: Latinos or Reagan Democrats?

Linn Washington, Jr.
Police Brutality and Cover-Up in Philly

Omar Barghouti
60 Years of Nakba, 41 Years of Occupation ...

Scott Pellegrino
Jim Crow Radio: Bob Grant's Lifetime Achievement Award

John Walsh
Obama Woos AIPAC

Dan Bacher
The Parching of California

DC Larson
Nazi Rockers ... F-Off

Robert Jensen
Masculine, Feminine or Human?

Website of the Day
Ohio Cops Attack Long Walkers

June 4, 2008

Eric Walberg
Princess Patricia and the Taliban

Gary Leupp
Iran and EFPs: Chronology of a Lie

Ralph Nader
Disenfranchised Youth

Dave Lindorff
Of Whiners and Poor Losers

George Wuerthner
Farm Economics

Victor M. Rodriguez
The Puzzle of Race and Politics

Remi Kanazi
Why a Cultural Boycott of Israel is Needed

Stephane Luçon
Renault's Romanian Fairyland Suspended

Farzana Versey
The Tablighi Jamaat Movement

Laray Polk
The Militarization of Space

Website of the Day
Red State Rebels

June 3, 2008

Paul Craig Roberts /
Lawrence M. Stratton
Legislating Tyranny

Mike Whitney
The Withering Economy

Steve Early
San Juan Showdown

Manuel Otero
Why Hillary Won Puerto Rico: the View from the Colony

George Bisharat
The Hope of a Victimized People

Nikolas Kozloff
Obama's VP Quandry

Dan Bacher
Death on the Salmon Highway

Website of the Day
Censoring Bill Knott?

June 2, 2008

Uri Avnery
The Olmert Scandal

Nikolas Kozloff
Obama's Latino Problem Getting Worse

Allan J. Lichtman
Revisionist History: Bush, Borah and Hitler

Malini Johar Schueller
The Color of Randomness: Returning to the US From Beirut Via Syria

Robert Weissman
What's Driving Skyrocketing Oil Prices?

Peter Morici
Bailing Out Wall Street

Manuel Garcia, Jr.
Don't Get Burned: How to Protect Yourself From Raytheon's Pain Gun

John Ross
Celebrating Catholic Fanaticism in Mexico

Ahmad Al-Akhras
Encounters with the Watch List

Website of the Day
Man on Earth

May 31 / June 1, 2008

Alexander Cockburn
The Worst is Yet to Come

Jeffrey St. Clair
Arkansas Bloodsuckers

Gary Leupp
How McClellan Prettifies Bush

Stan Cox
Broken Agriculture

Rannie Amiri
Lebanon: the Domino That Wouldn't Fall

P. Sainath
A Guaranteed Day's Work--in the Fields, at 110 Degrees, for $2 a Day

Binoy Kampmark
Going Bankrupt in Vallejo

Robert Fantina
Bush, Rice and McClellan

Seth Sandronsky
Will There be Water Riots, as Sacramento Goes Dry?

Corporate Crime Reporter
Death Penalty for Bush?

Anthony DiMaggio
Gaming the Ghetto: Grand Theft Auto IV, Racist Media and the Concrete Jungle

Karl Grossman
A Half-Trillion for Nukes

Matt Reichel
From Vegas to the Heartland and Back Again

Paul Myron Hillier
Of Gas and God

Andy Worthington
Suicide at Guantánamo

David Yearsley
And the Winner is ... Wayne Shorter

Daniel Cassidy
Free Lunch

Charles Thomson
If Hitler Had Been a Hippy ...

Gary Corseri
A Dream Deferred: Activism and the Arts

Wajahat Ali
Sex and the City Through a Man's Eyes

Ron Jacobs
Robins Weep

Poets' Basement
McNeill and Davies

Website of the Day
Last Charge of the Light Horse

May 30, 2008

Bassam Aramin
Here's the Truth You've Been Running From

Andrew Cockburn
Petraeus' Iran Obsession

Saul Landau
How We Got Into This Mess

Nikolas Kozloff
Meet South America's New Secessionists

Robert Sandels
Turning Back the Clock on Cuba

Dave Lindorff
Talk is Cheap

Martha Rosenberg
Raiding Big Meat; Arresting the Wrong People

Harvey Wasserman
Lieberman & McCain: Linking Internet Censorship and Atomic Reactor Terror

Doug Giebel
A Plague on Both Your Houses (of Congress)

Shaun Harkin
The Trial of the Raytheon 9

Website of the Day
The Once and Future Environmental Movement

May 29, 2008

Jeffrey St. Clair
Bill Clinton and the Rich Women

Nikolas Kozloff
Puerto Rico, Obama and the Politics of Race

Col. Dan Smith
Deceiving the Dead

Karl Grossman
The Most Lucrative Incentive for Nuclear Power in the History of the United States

William S. Lind
Inside the Washington Game

Robert Weissman
What to do About the Price of Oil

Dave Lindorff
Why Puerto Rico Won't Matter

David Macaray
A Union Fable

Chris Genovali
Fear and Loathing in the Northern Rockies

Laura Carlsen
Mexico's Battle Over Oil

Website of the Day
Support Antiwar.com

May 28, 2008

Wajahat Ali
The Libertarian Dark Horse: An Exclusive Interview with Ron Paul

Ralph Nader
What's Really Driving the High Price of Oil?

Brian McKenna
Why I Want to Teach Anthropology at the Army War College

Corporate Crime Reporter
Why Vincent Bugliosi Wants to Prosecute George W. Bush for Murder

Brian Cloughley
The Attack on Damadola

Eric Walberg
Opium for the Masses from Afghanistan

Michael Dickinson
Raytheon's Pain Ray: Coming to a Protest Near You

Ijaz Khan
Opening Windows in Pakistan

Website of the Day
Older Than America

May 27, 2008

Alexander Cockburn
In Her Mind She's Killed Before: the Plot to Assassinate Ralph Nader

Greg Kafoury
Is Obama Turning (Further) Right?

Jean Bricmont
Western Delusions

Tim Wise
Farrakhan is not the Problem

Ricardo Alarcón
Puerto Rico's Turn

Stephen Soldz
APA Supports Psychologist Engagement in Bush Regime Interrogations

Andy Worthington
The Guantánamo 16

Alan Singer
Vapid, Stupid and Insulting: Chuck Schumer Speaks to the Graduates

Richard Neville
Storm in an A-Cup

Susie Day
Gone with the W

May 26, 2008

Uri Avnery
The Syrian Option

Bill Quigley
War Immemorial Day

Col. Dan Smith
Retreating from Hell: a Different Memorial Day

Cindy Sheehan
Why Memorial Day is a Double-Whammy for Me

Marjorie Cohn
Hillary's Assassination Politics: Her Last Shot?

Fred Gardner
Does the VA Care?

Raymond J. Lawrence
Pain Pays: Getting Rich at NY Presbyterian Hospital

Harvey Wasserman
Mugging the Election System

Moncia Benderman
Truth Matters

David Rovics
In Praise of Utah Phillips

Website of the Day
Fox News Jokes About "Knocking Off" Osama and Obama

May 24 / 25, 2008

Alexander Cockburn
Death-Wish Hillary Primes Manchurian Candidate

Jeffrey St. Clair
Yellowstone: How Sununu Shrank the Ecosystem

Barbara Rose Johnston
Dam Legacies, Damned Futures

Nikolas Kozloff
U.S. Fourth Fleet in Venezuelan Waters

Adriana Kojeve
The Environment and the 2008 Elections

Robert Fantina
Justice Department's Revelations on Torture

Dave Lindorff
Bush's War on Children in Iraq

David Yearsley
The War on Kitsch

Nelson P. Valdés
The Buying of "Democracy" Agents in Cuba

Kathleen M. Barry
Celebrating Ethnic Cleansing

John Ross
Mexico's Narco Opera Reaches for High Point

Allison Kilkenny
Apathy Doesn't Live in Bronx

Fred Gardner
Orangeburg, 1968

Elizabeth Schulte
Can the Whole World be Fed?

Daniel Gross
Remembering the Wendy's Massacre: the Dangerous Side of Retail Work

Christopher Brauchli
The Search for a Token Right-winger

Richard Rhames
A Nation of Sheep

Daniel Cassidy
My Mother

Poets' Basement
Davies, Klipschutz and Willson

Website of the Weekend
Happy Birthday, Bob

May 23, 2008

Paul Craig Roberts
War Abroad, Poverty at Home

Alan Farago
The Radical Extremists of the Building Industry

Conn Hallinan
Ballots and Bullets: From Beirut to Bolivia

Mark Engler
The World After Bush

George Wuerthner
Cars and Cows: Living Large in America

Kamran Matin
The Kurds and American Neo-Imperialism

Sandy Boyer /
Shaun Harkin
The Long Incarceration of Pol Brennan

Robert Weitzel
A "Holey" Instrument of Peace in Iraq

Cindy Sheehan
An Uphill Battle

Liaquat Ali Khan
Pakistan's Futile Constitutional Amendment

Website of the Day
A Message from the Moral Compass of the McCain Campaign

May 22, 2008

Vijay Prashad
Racist Grammar

Joanne Mariner
A Military Commissions Cheat Sheet

Sharon Smith
60 Years of Apartheid

Jeff Birkenstein
Disaster Redux: Some Early Thoughts on the Earthquake in China

Brendan McQuade
From Obama to the PRTs in Iraq

Peter Morici
The Sorry State of the Banking Industry

Niranjan Ramakrishnan
Restoration Boulevard

Dave Zirin
What I Want to Ask Mary Tillman

Ron Jacobs
CPR for the Antiwar Movement

Stephen Lendman
Immoral Hazard

Website of the Day
Hagee: God Sent Hitler to Drive the Jews to Israel

May 21, 2008

Jeffrey St. Clair
The Gothic Politics of Hillary Clinton

Nikolas Kozloff
U.S. Military Bases in South America

Alan Farago
Miami, Cuba and the Presidential Campaign

Dave Lindorff
Big John and the Scary, Scary Iran Threat

David Model
Genocide in Iraq?

Eric Walberg
Afghanistan: Who is the Enemy?

Franklin Lamb
Lebanon Gets a President

Kenneth Couesbouc
Tax Against Tyranny

Website of the Day
Child Labor and War-Affected Children: a Photo Essay

May 20, 2008

Ralph Nader
A Trip Inside Google

Uri Avnery
With Friends Like These

Patrick Irelan
The Empire and the Fleet

Ray McGovern
Come Out, Admiral Fallon, Wherever You Are

David Macaray
The UAW Strike Against American Axle

Chris Genovali
Big Oil on the Water: Skating Around the Tanker Issue

Ibrahim Fawal
Birmingham, Israel and the Nakba

Christopher Ketcham
Let Us Now Praise Famous Suicides

Andy Worthington
Guantánamo Trial Delayed

Martha Rosenberg
Merck is a Repeat Offender

Website of the Day
Defend the Students Who Pied Tom Friedman

May 19, 2008

Saul Landau
Cuba Will Live

Paul Craig Roberts
The Metamorphosis of the Conservative Movement

Brian McKenna
Brotherly Love in Philly's Badlands

Patrick Cockburn
City of the Dead: Mosul on Lockdown

B. R. Gowani
The Central Problem Pakistan Needs to Tackle

Dr. Trudy Bond
Psychologists and Torture: If Not Now, When?

Cindy Sheehan
Whose War is It?

John Mohawk
The Warriors Who Turned to Peace

Remi Kanazi
When Free Speech Doesn't Come for Free

Robert Day
I Get a Horse

Website of the Day
Evolve or Die

Subscribe Online

Supreme Court Checks and Balances in Boumediene

Reviving Habeas Corpus

By MARJORIE COHN

After the Supreme Court handed down its long-awaited opinion, upholding habeas corpus rights for the Guantánamo detainees, I was invited to appear on The O'Reilly Factor with guest host Laura Ingraham. Although she is a lawyer and former law clerk for Justice Clarence Thomas, Ingraham has no use for our judicial branch of government, noting that the justices are "unelected." Indeed, she advocated that Bush break the law and disregard the Court's decision in Boumediene v. Bush:

"Marjorie, I was trying to think to myself, look, if I were President Bush, and I had heard that this case had come down, and I'm out of office in a few months. My ratings, my popularity ratings are pretty low, I would have said at this point, that's very interesting that the court decided this, but I'm not going to respect the decision of the court because my job is to keep this country safe."

What did the Court decide that so incensed Ingraham (who has just been rewarded for her "fair and balanced" views with her own show on Fox News)? Will this decision really imperil our safety? And will Boumediene become an issue in the presidential election?

The Supreme Court held in a 5-4 ruling that the Guantánamo detainees have a constitutional right to habeas corpus, and that the scheme for reviewing 'enemy combatant' designations under the Combatant Status Review Tribunals is an inadequate substitute for habeas corpus, a result I predicted in a December 3, 2007 article.

Guantánamo detainees have constitutional right to habeas corpus

Article 1, Section 9, Clause 2 of the Constitution is known as the Suspension Clause. It reads, "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." In section 7(a) of the Military Commissions Act of 2006, Congress purported to strip habeas rights from the Guantánamo detainees by amending the habeas corpus statute (28 U.S.C.A. § 2241(e)). In Boumediene, the Court held that section of the Act to be unconstitutional, declaring that the detainees still retained the constitutional right to habeas corpus.

Justice Kennedy, writing for the majority, reiterated the Court's finding in Rasul v. Bush that although Cuba retains technical sovereignty over Guantánamo, the United States exercises complete jurisdiction and control over its naval base and thus the Constitution protects the detainees there. Kennedy rejected "the necessary implication" of Bush's position that the political branches could "govern without legal restraint" by locating a U.S. military base in a country that retained formal sovereignty over the area. In his dissent, Chief Justice Roberts flippantly characterized Guantánamo as a "jurisdictionally quirky outpost."

Kennedy worried that the political branches could "have the power to switch the Constitution on or off at will" which "would lead to a regime in which they, not this Court, say 'what the law is.'" "Even when the United States acts outside its borders," Kennedy wrote, "its powers are not 'absolute and unlimited' but are subject 'to such restrictions as are expressed in the Constitution.'"

Thus, Kennedy observed, "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers." Indeed, habeas corpus was one of the few individual rights the Founding Fathers wrote it into the original Constitution, years before they enacted the Bill of Rights.

"The test for determining the scope of [the habeas corpus] provision," Kennedy wrote, "must not be subject to manipulation by those whose power it is designed to restrain." It is such manipulation that Laura Ingraham would perpetuate. It was a Republican-controlled Congress, working hand-in-glove with Bush, that tried to strip habeas corpus rights from the Guantánamo detainees in the Military Commissions Act. The Supreme Court has determined that effort to be unconstitutional. Fulfilling its constitutional duty to check and balance the other two branches, the Court has carried out its mandate to interpret the Constitution and say "what the law is."

No adequate substitute for habeas corpus

Finding that the Guantánamo detainees retained the constitutional right to habeas corpus, the Court turned to the issue of whether there was an adequate substitute for habeas review. Bush established Combatant Status Review Tribunals ("CSRTs") to determine whether a detainee is an "enemy combatant." These kangaroo courts provide no right to counsel, only a "personal representative," who owes no duty of confidentiality to his client and often doesn't even advocate on behalf of the detainee; one even argued the government's case. The detainee doesn't have the right to see much of the evidence against him and is very limited in the evidence he can present.

The CSRTs have been criticized by military participants in the process. Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, said they often relied on "generic" evidence and were set up to rubber-stamp the "enemy combatant" designation. When he sat as a judge in one of the tribunals, Abraham and the other two judges - a colonel and a major in the Air Force - "found the information presented to lack substance" and noted that statements presented as factual "lacked even the most fundamental earmarks of objectively credible evidence." After they determined there was "no factual basis" to conclude the detainee was an enemy combatant, the government pressured them to change their conclusion but they refused. Abraham was never assigned to another CSRT panel. It is widely believed that Abraham's affidavit about the shortcomings of the CSRT's in Boumediene's companion case caused the Supreme Court to reverse its denial of certiorari and agree to review Boumediene. This was the first time in 60 years the Court had so reversed itself.

While the Court declined to decide whether the CSRTs satisfied due process standards, it concluded that "even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal's findings of fact." The Court then had to determine whether the procedure for judicial review of the CSRTs' "enemy combatant" designations constituted an adequate substitute for habeas corpus review.

"For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context," Kennedy wrote, "the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government's evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding."

But in the Detainee Treatment Act ("DTA"), Congress limited district court review of the CSRT determinations to whether the CSRT complied with its own procedures. The district court had no authority to hear newly discovered evidence or make a finding that the detainee was improperly designated as an enemy combatant.

The Supreme Court noted that "when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release." Since the DTA's scheme for reviewing determinations of the CSRTs did not afford this authority, the Court held it was not an adequate substitute for habeas corpus and thus section 7 of the Military Commissions Act acted as "an unconstitutional suspension of the writ."

Boumediene will not imperil the United States

In his dissent, Justice Scalia sounded the alarm that the Boumediene decision "will almost certainly cause more Americans to be killed." Likewise, the Wall St. Journal editorialized, "We can say with confident horror that more Americans are likely to die as a result." Their predictions, however, are not based in fact.

Lakhdar Boumediene and five other Algerian detainees from Bosnia were accused of threatening to blow up an embassy in Bosnia. The Supreme Court of Bosnia and Herzegovina concluded there was no evidence to continue to detain them and ordered them released. The Bosnian officials turned them over to the United States and they were transported to Guantánamo, where they have languished since 2002.

Many of the men and boys at Guantánamo were sold as bounty to the U.S. military by the Northern Alliance or warlords for $5,000 a head. Indeed, Maj. Gen. Jay Hood, the former commander at Guantánamo, admitted to the Wall St. Journal, "Sometimes we just didn't get the right folks," but innocent men remain detained there because "[n]obody wants to be the one to sign the release papers . . . there's no muscle in the system."

The Boumediene decision will not directly impact the criminal cases against Khalid Sheikh Mohammed and the few others who will be tried in the military commissions. It is the 211 men who have filed habeas corpus petitions challenging their "enemy combatant" designations who will benefit from this ruling. No one will be automatically released. They will simply be afforded a fair hearing. Most Americans would not object to a requirement that our government fairly prove someone guilty before we imprison him indefinitely.

Even Justice Jackson, the chief prosecutor at Nuremberg, advocated due process for the Nazi leaders. "The ultimate principle," he said, "is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty." Jackson understood the importance of the presumption of innocence in our system of law.

Kennedy quoted Alexander Hamilton, who wrote in Federalist 84 that "arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny." Justice Souter cut to the chase in his separate opinion, citing "the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years." None of them has been charged with a crime and none has been brought before a fair and impartial judge.

"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."

"Security subsists, too, in fidelity to freedom's first principles," according to Kennedy. "Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers ... Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person."

In responding to Laura Ingraham's false dichotomy between keeping us safe and protecting habeas corpus, I cited Benjamin Franklin's admonition: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."

Attacking judges under guise of national security

The Boumediene decision split along political lines with the four so-called liberal justices - Ginsburg, Stevens, Souter and Breyer - in the majority, and the four conservative justices - Scalia, Thomas, Roberts and Alito - in the dissent. Kennedy, the swing vote, broke the tie. Curt Levy from the Committee for Justice, which seeks to pack the courts with right-wing judges, blogged that Boumediene has "teed up the Supreme Court issue nicely for the G.O.P."

Indeed, John McCain has already seized upon it as a campaign issue. The day the opinion came out, McCain said, "It obviously concerns me . . . but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantánamo Bay and I still think that we ought to do that." By the next day, McCain had changed his tune. "The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country," he declared. McCain, who hopes to overcome the unpopularity of his positions on the war and the economy, will make national security the centerpiece of his campaign.

Barack Obama, who links our national security with how other nations view us, characterized the Boumediene decision as "an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus."

It is very likely that the next president will make at least one nomination, and probably two, to the Supreme Court. Boumediene is the poster child for how delicately the Court is now balanced, and the disastrous consequences to the doctrine of separation-of-powers that await us if a President McCain makes good on his promise to appoint judges in the mold of Roberts and Alito.

Marjorie Cohn is president of the National Lawyers Guild and a professor at Thomas Jefferson School of Law. She is author of Cowboy Republic. Her articles are archived at www.marjoriecohn.com.

This article first appeared in Jurist.

Now Available from CounterPunch Books!

Born Under a Bad Sky:
Notes from the Dark Side
of the Earth
By Jeffrey St. Clair

Buy End Times Now!

Click Here to Buy!

Click Here to Buy!

Click Here to Order!

Humanitarian Imperialism
By Jean Bricmont