The Constitution on trial, again

(This post was begun 0n December 5th, but computer delayed prevented its posting.)

Yesterday, the Supreme Court heard arguments in Boumediene v. Bush, another case challenging the Bush administration's practice of ignoring the Constitution when it comes to the rights of prisoners held at Guantanamo Bay. (I do not meant to suggest that that is the only instance in which this administration ignores the basis for the American government.)

This time, the issue is whether Congress could constitutionally bar the "detainees" from the right of habeas corpus through sleight of hand: not by saying that the right to the Great Writ is withdrawn, but by precluding courts from hearing such claims. It is hard to believe that this can be seriously argued: the Constitution says that Congress may suspend habeas rights only in times of insurrection or invasion. Preventing the courts from hearing cases involving rights is no different, in any meaningful way, from simply denying those rights.

The case for the petitioners--37 detainees--as argued by Seth Waxman. You can hear the argument on Oyez.

The essential point that Waxman made was that if the territory at Guantanamo Bay is not governed by American law, then it is a lawless territory. This is not quite my formulation, which is that the government was created by the Constitution, and thus must act under the Constitution at all times and in all places, but it is close enough for present purposes.

Boumediene is being argued against yet another constitutional outrage: the decision of a military judge that defense lawyers for Omar Ahmed Kahdr may not tell him the identity of some of the witnesses against him. Forget the Sixth Amendment, a model of legal clarity:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

But the Constitution does not mean miuch to this administration; it is an inconvenience or, at most, an excuse.