High Court Checks Limitless Government

ALEX de Tocqueville, a seventeenth-century French aristocrat and lawyer who incidentally was commissioned, along with another influential lawyer, Gustave de Beaumont, by his country’s government, to assess the U.S. penitentiary system, wrote an illuminating text, Democracy in America (1835, 1940), outlining this country’s judicial system. It is, in my opinion, an excellent text geared to laymen, including Muslims themselves, who yearn to understand the U.S. judicial system, to understand its flaws, and to work to produce a more Perfect Union.

I am aware that all Muslims, including myself, must determine themselves to struggle to uphold the principles enshrined in the Holy Qu’ran, to follow the Sunnah of the prophet Muhammad (peace be upon him and his progeny), and to work to implement the Shariah world-wide. Political realities dictate, at this present time however, that both Muslims and non-Muslims must exist as social cohorts within a Western political framework that boasts of its political laws. Even though Muslims must not blindly adhere to Western laws, we must respect it. By doing so, we know that human beings, not Allah (Subhana Wa Ta’Ala) Himself, create laws to protect this country’s welfare; therefore, all Muslims must work to secure their political rights, because laws, like men, are not perfect.

At the head of the U.S. judicial system is the U.S. Supreme Court. Deemed the “highest court in the land”, its primary purpose is to uphold the U.S. Constitution by assessing the constitutionality of laws brought before it. If the laws brought before it does not square with the Constitution, then the laws, enacted by either the U.S. Congress or the States through statutes, is deemed unconstitutional; and Congress or State Legislatures must revise its laws to square with the U.S. Constitution. The U.S. Constitution is a document written by its Framers to uphold the separation of powers as practiced by the Judicial (that is, the “inferior” courts), the Legislative (Congress, et al), and the Executive Branch (The President and his cohorts). The U.S. Constitution is an independent document. The U.S. Supreme Court, by distancing itself from all political ideologies, squares it with other laws.

At the heart of the U.S. Constitution, according to many constitutional scholars, is its supreme duty to protect each individual against government encroachment or intrusion and protects individual freedom from state action. This is the basis for individual political liberties. One clause embedded in the U.S. Constitution is a legal action exercised by anyone within U.S. territory to seek “relief” from unlawful detention, called the Writ of habeas corpus. Article I, Section 9 of the U.S. Constitution, referred to as the Suspension Clause, reads thus: “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”. If the U.S. government imprisons me, for example, I have the right, through representation, to inquire into the evidentiary reasons for my imprisonment; and if the evidence does not warrant my imprisonment, then the government must release me. In fact, when the Rev. Dr. Martin Luther King, in his struggles for African-American political and social rights, was imprisoned for his non-violent efforts, his lawyers would repeatedly tender Writs of habeas corpus in state courts; and state authorities had no choice but to release him.

All Western political systems have, within its constitutions, this bulwark principle, that everyone must legally petition the government, if she or he is imprisoned, to tender a Writ of habeas corpus, through representation, and inquire into the evidentiary reasons for imprisonment. The history of this legal action dates back to 1215, when the King’s barons petitioned the then King John of England to renounce certain rights that he possessed unto himself; that he must accept that his will must be bound by law; and that he must respect certain legal procedures. The Magna Carta severely limited the King’s political power of his subjects.

The British Parliament witnessed an unprecedented event when David Davis, a conservative member of parliament who represented the constituency of Haltemprice and Howden, resigned from his post on June 12, 2008 from the House of Commons because his country’s anti-terror bill, first formulated by then British prime minister Tony Blair and passed recently by the House, asserted that the government is obliged to imprison anyone who is suspected of terrorism for 42 days without charge. He had this to say at a news conference after his resignation: “This Sunday is the anniversary of Magna Carta - the document that guarantees the most fundamental of British freedoms – Habeas Corpus”. Currently, he is mounting a campaign to challenge this bill.

The Executive Branch of the U.S. government, at this present time, is in the throes of a “limitless government” syndrome similar to that of the British. George Bush, the current U.S. president, is acting like a King. The U.S. Supreme Court, however, reined him in. He was acting like a kid in a candy store, directing that his cohorts draft laws that the U.S. Supreme Court found unconstitutional.

As a Muslim, I believe that this government has the right to detain those suspected of harming irreparably any government that seeks to protect its citizens. But the operative phrase here is “suspected of”, as this government must have sufficient evidence to show that she or he intentionally wished to harm its operations. If they do not have such evidence, she or he must be released. Of course, Western governments, in its efforts to capture and convict those who purport to inflict irreparable harm on the U.S. government, rush to detain anyone without due charge; we now know of “secret prisons” run by the U.S. government, along with its allies, world-wide, and we now know of detainees, almost all of whom are Muslims, who have languished at the Guantanamo Bay prison in Cuba without knowing why they are being detined. But there are “apples”, “oranges”, and “pears”. All Western governments must uphold what it views as its cherished principle: the defense of individual freedom. This principle applies to Muslims as well.

In 2002, Bosnian police seized Lakhdar Boumediene and five other Algerian nationals as U.S. intelligence officials suspected their involvement in a plot to attack its Algerian embassy. The U.S. government classified these men as “enemy combatants” in the war on terror and consigned them to the Guantanamo Bay Naval Base, located on land that the U.S. leases from Cuba. Boumediene filed a petition for a writ of habeas corpus, alleging violations of the U.S. Constitution’s Due Process Clause, various U.S. statutes and treaties, and international law. His request was denied. The District Court granted the U.S. government’s motion to have all his claims dismissed on the ground that he had no right to a habeas petition. The U.S. Court of Appeals, the court higher than the district court, affirmed the government’s position but the State Supreme Court, the court higher than the Appeals Court, ruled for Boumediene, citing another U.S. Supreme Court case, Rasul v Bush(2004), which held that the habeas statute extends to non-citizen detainees at Guantanamo Bay. In response, the president directed the Congress to enact the Military Commissions Act of 2006, or MCA, which eliminated federal courts’ jurisdiction to hear habeas applications from detainees who have been consigned to “enemy combatant” status according to procedures established in the Detainee Treatment Act of 2005, or DAT.

In a landmark 5-4 decision, the U.S. Supreme Court ruled in favor of Boumediene, declaring that he is entitled to habeas corpus protections. It struck down the Bush Administration’s laws, among them the MCA, that passed through the Republican-led Congress in 2006 and that stripped terrorism suspects of habeas corpus rights. Guantanamo Bay prisoners can now go before U.S. federal judges to contest their years-long detentions. The president heard of this ruling while in Rome. Here is what he said: “We’ll abide by the court’s decision. That doesn’t mean that I have to agree with it (italics mine).” Writing for the court in a 70-page decision, Justice Anthony Kennedy wrote this: “The laws and the Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The U.S. Supreme Court, in its decision, cites MCA, section seven, and DAT, section 1005 (e), as being too restrictive, thus barring detainees from hearing evidence against her or him in the federal courts; that they are not entitled to the Suspension Clause (Art. 1, section 9). “Petitioners have the constitutional privilege of habeas corpus” the court wrote. “They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo”.

In an op-ed piece in the Wall Street Journal on June 24, 2008, the writer debunks John Yoo’s attack on the Boumedine decision. It mentions that Yoo forgot one simple point: Lakhdar Boumediene was not a prisoner of war. He was neither captured on any battlefield, nor captured with any weapons, nor was he in any uniform; he isn’t even a citizen of any country at war with the United States. John Yoo, I will mention, is now professor of law at Berkeley College in California and was one of president legal architects that fashioned laws in tandem with the president’s political directive.

Though Muslims must not blindly adhere to human laws, they must at least respect them. This foundational line of thinking should prompt us to agitate to enact more “perfect” laws that serve our political interests and ambitions. That this president, and all other presidents after him, will contest the Boumediene decision by directing Congress to amend laws that square with the U.S. Constitution. And it is in this spirit that all Muslims must remain vigilant.

The writer is a recent revert to Islam and can be contacted at: drummondhugh@verizon.net