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What He Said

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Souter, concurring in Boumediene:

It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court’s exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny,today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.

To think that permitting access to basic habeas rights to prisoners who have been arbitrarily detained by the American government in American-controlled territory for six years is some kind of massive judicial power grab is silly. More later.

UPDATE from bean: Marty Lederman has initial reactions to the decision.

UPDATE the second (SL): Matt beat me to my hobbyhorse, but I note initially that reasonable, moderate, thinking person’s conservatives Alito and Roberts not only dissented (the latter writing) but joined Scalia’s dissent — which begins with a some paragraphs of talk-radio demagoguery about how because of the Court Islamofascists will be come to kill your children — in full. Again, it seems worth noting that there is effectively no substantive difference between Bush’s appointments and Scalia and Thomas.

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