Empire slightly impeded by Constitution

Justice Antonin Scalia -- a smart guy who uses his brain in the service of empire

Today's Supreme Court decision, ruling that Guantanamo prisoners (after six years of incarceration and torture) have the right to demand that the government show some reason to hold them (that's what habeas corpus means roughly translated from the legalese) is unequivocally a Good Thing.

And some of what the 5-4 judgment (authoritarian partisans dissenting) said was satisfying:

Even though the two political branches -- the President and Congress -- had agreed to take away the detainees' habeas rights, Kennedy said those branches do not have "the power to switch the Constitution on or off at will."

SCOTUS Blog

... because the Government chose to detain these prisoners at GTMO for the very purpose of avoiding a judicial check on the legality of the detentions, the Court will ensure that the constitutional guarantee extends to the naval base. Or as Gerry Neuman and Harold Koh put it in their amicus brief in Rasul: "The U.S. government should not be permitted to evade judicial scrutiny by transporting [prisoners] to Guantanamo instead of Puerto Rico."

Marty Lederman
Balkinization

Dick Cheney's hunting buddy, Justice Scalia, predictably waved the bloody shirt in dissent, predicting that Americans would get killed if these prisoners were allowed minimal legal rights.

Scalia would have been more intellectually honest -- I know, I know -- had he simply stated what he undoubtedly thinks: that the rules need to be thrown out and all power given to the political-military branches because the rules don't work anymore. But perhaps what is most risible in his dissent is his undying solicitude for Cuban sovereignty, this from a man who no doubt still remembers the Maine and whose deepest sentiments align with Noam Chomsky's observation that the US government acts as if it owned the world.

From that perspective the thrust of today's ruling is crystal clear: Very well, but in that case the Constitution will dog the government to the ends of the earth if need be.

"Occasional Observer"
Comment at Balkinization

Though I am not a lawyer, this does seem to be the nub of it. Bush/Cheney/Addington/Yoo claim unhindered power to do anything they please, anywhere in the world. They assert world empire. They do their best to keep the U.S. population in a panic that "excuses" any little excesses like (losing) wars of conquest. They've run, at least momentarily, into a judicial determination that if empire extends throughout the world, they must contend with (some, minor) legal process throughout the world.

It's a step. A baby step.