Updates in the struggle for American values

In the latest issue of the New York Review, Jane Mayer takes stock of the Bush administration's policies over the last seven years in an article entitled "the Battle for a Country's Soul." Before explaining how the Bush administration has subverted American values in its "global war on terror", Ms. Mayer appropriately starts her article with a quote from the convention where the U.S. constitution was drafted:

A lady asked Dr. [Benjamin] Franklin, "Well Doctor, what have we got, a republic or a monarchy?" "A republic," replied the Doctor, "if you can keep it."

One of the core American values is, of course, that the U.S. government is "a government of laws, and not of men." (as expressed by John Adams in the Constitution for the commonwealth of Massachusetts of 1780). Nowhere has the U.S.'s soul suffered more from Bush's war on terror than here. In its zeal to expand the powers of the executive (at the expense of the legislature and the courts), the Bush administration has broken numerous laws and there is no sizable movement to hold its members to account. Indeed, there's no reason to believe that the Bush administration has stopped breaking the law.

One of the most significant and poignant "battles" for the rule of law focuses on the detention of captives in the global war on terror in a military facility in Guantanamo Bay, Cuba. The Bush Administration moved captives there in part because it believed that constitutional rights (including the right to a fair trial) do not apply to foreigners who are held outside the U.S. In "Why It Was A Great Victory"(again in the New York Review), Ronald Dworkin explains why the recent decision in Boumediene v. Bush is one of the most important Supreme Court decisions in recent years. In short, for the first time the U.S. Supreme Court has held that the executive branch of the government cannot circumvent judicial review and the constitutional right to habeas corpus (a right to challenge detention) simply by moving captives to a military facility outside the country. Quoting the majority opinion of Justice Kennedy, Dworkin explains: "The test for determining the scope of this [constitutional] provision must not be subject to manipulation by those whose power it is designed to restrain."

The Supreme Court's decision moves American case law much closer to the case law of the European Court of Human Rights in Strasbourg which has long held in cases like Loizidou v Turkey, 20 EHRR 99 (1995), that the European Convention on Human Rights and Fundamental Freedoms also applies in geographical areas that are under the "effective control" of a signatory.

The Bush administration has not yet given up, however, and Attorney General Mukasey quickly responded to the Supreme Court's decision by calling for legislative action. As Marty Lederman explains over at Balkinization, Mukasey's request should be rejected for what it is -- an apparent and improper attempt to further delay judicial review. It's high time that we allow the courts to do what they do best: evaluate evidence and apply the law to determine whether the detention of captives is lawful. By doing so, the judiciary may -- as a side benefit -- also help recapture some of the ideals that made the U.S. a shining example to many around the world before the current administration. If so, it would not come a minute too soon.