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06/12/2008

Supreme Court Judges Obama Right on


Constitution
posted by John Nichols

When the U.S. Senate voted in September, 2007, on whether to restore habeas
corpus protections for those detained by the United States, the senators who would
emerge as the presumptive Democratic and Republican nominees for president
parted company.
Illinois Democrat Barack Obama embraced the basic Constitutional principle that
individuals who are detained by the U.S. government have a right to challenge their
detention -- no matter where they are held.
Arizona Republican John McCain rejected the wisdom of the founders of the American
experiment and voted against restoring habeas corpus protections for foreign
suspects held at Guantánamo Bay, Cuba, and others who are detained by U.S.
authorities.
Today, the Supreme Court said Obama was right and McCain was wrong.
A majority that included conservatives and liberals issued a 5-4 decision holding, in
the words of Justice Anthony Kennedy, that, "The laws and Constitution are designed
to survive, and remain in force, in extraordinary times."
This was the third time the nation's highest court has rejected the claim of the Bush
administration -- and allies such as McCain -- that the military has the authority to
hold people it labels "enemy combatants."
During the Democratic presidential primary campaign, more than 125 constitutional
lawyers and legal experts signed a "Habeas Lawyers for Obama" letter that read:
Dear Friends:
We are at a critical point in the Presidential campaign, and as lawyers who have been
deeply involved in the Guantanamo litigation to preserve the important right to
habeas corpus, we are writing to urge you to support Senator Obama.
The Administration's Guantanamo policies have undercut our values at home and
stained our reputation around the world. All of us are lawyers who have worked on
the Guantanamo habeas corpus litigation for many years, some of us since early
2002, and we were all deeply involved in opposing the Administration's attempt to
overturn the Supreme Court's Rasul decision by stripping the courts of jurisdiction to
hear the Guantanamo cases. We have talked with Senator Obama about why the
Guantanamo litigation is so significant, and we have worked closely with Senator
Obama in the fight to preserve habeas corpus.
Some politicians are all talk and no action. But we know from first-hand experience
that Senator Obama has demonstrated extraordinary leadership on this critical and
controversial issue. When others stood back, Senator Obama helped lead the fight in
the Senate against the Administration's efforts in the Fall of 2006 to strip the courts
of jurisdiction, and when we were walking the halls of the Capitol trying to win over
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enough Senators to beat back the Administration's bill, Senator Obama made his key
staffers and even his offices available to help us. Senator Obama worked with us to
count the votes, and he personally lobbied colleagues who worried about the political
ramifications of voting to preserve habeas corpus for the men held at Guantanamo.
He has understood that our strength as a nation stems from our commitment to our
core values, and that we are strong enough to protect both our security and those
values. Senator Obama demonstrated real leadership then and since, continuing to
raise Guantanamo and habeas corpus in his speeches and in the debates.
The writ of habeas corpus dates to the Magna Carta, and was enshrined by the
Founders in our Constitution. The Administration's attack on habeas corpus rights is
dangerous and wrong. America needs a President who will not triangulate this issue.
We need a President who will restore the rule of law, demonstrate our commitment
to human rights, and repair our reputation in the world community. Based on our
work with him, we are convinced that Senator Obama can do this because he truly
feels these issues "in his bones."
We urge you to support Senator Obama.
Among the signers of that January 28 letter were: Rear Admiral John Dudley Hutson,
U.S. Navy (Ret.), the Judge Advocate General of the Navy from 1997 to 2000 who
currently serves as dean and president of Franklin Pierce Law Center; Rear Admiral
Donald J. Guter, U.S. Navy (Ret.), the Judge Advocate General of the Navy from 2000
to 2002 who currently serves as dean of Duquesne Law School; Michael Ratner, the
president of the Center for Constitutional Rights; and Edwin Chemerinsky, the
renowned constitutional law and federal civil procedure scholar and founding dean of
the Donald Bren School of Law at the University of California, Irvine.
Of course, Justice Kennedy, a Ronald Reagan appointee, will not be signing the
"Habeas Lawyers for Obama" letter. Nor will the other Republican appointees
(Justices John Paul Stevens and David Souter) who formed the majority of the court's
pro-habeas majority that also included Democratic appointees Ruth Bader Ginsburg
and Stephen Breyer. But the justices have made it clear that Obama, a lawyer who
has taught constititional law at the University of Chicago Law School, was right in his
judgement that -- to, again, quote Kennedy -- "(the framers) deemed the writ (of
habeas corpus) to be an essential mechanism in the separation-of-powers scheme."

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