The Rule of Law

The Supreme Court, fresh off saving Dick Cheney from shame by eliminating his need to hand over his energy task force documents, actually preserved their status yesterday as reasonable individuals who answer to the Constitution rather than the executive branch. Well, at least all of them but Scalia and Thomas, anyway. The Supremes actually recognized that citizens have rights by ruling that enemy combatants at Guantanamo Bay can challenge their detentions in court. This is a major defeat for the Bush Administration and a major victory for due process. Whether or not you believe that terror suspects should be detained, you have to actually charge them with something rather than hold them in prison without possibility for release.

The reason the Bushies got bitchslapped for this one, in my view, is that they overstepped their boundaries. You can't tell judges who can and cannot go to court. That's their turf. And when the Justices feel their turf is threatened, they strike back with rhetorical fury. Here's Justice Stevens:

"At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process. Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."

The sound you might hear is me giving a standing ovation. The thing is, the rule of law seemed just as applicable to me in the aforementioned Cheney case, and withholding documents seems just as much a tool of tyranny, if to a lesser degree than withholding citizens. Can you realistically invoke executive privilege twice, and have it be right once, and wrong the next? I'm not as up on my law studies as I need to be, I guess, because that's contradictory to me.

The Supremes also again blocked enforcement of the Child Online Protection Act, which is a free speech issue no matter how you slice it. Basically the Court said that technology evolves so rapidly that what may be legal in 1999 is no longer relevant today. This discourages lawmakers from ever trying to curtail speech online for fear that it will inevitably become outdated. The majority opinion just seems right to me:

Kennedy’s opinion was based primarily upon the possibility that filtering and blocking software, deployed by the consumer, may be a more effective way to screen children from sexually explicit content than a system of severe penalties would be. And, because the technology that is behind such software has changed so markedly in the intervening years, the opinion concluded, the case must go back to a District Court for a full trial, including new factual development. In the meantime, a preliminary court order forbidding enforcement of the law remains in effect, with the prospect of lasting a few more years.

In other words, the consumer should be empowered to decide what they or their children should be able to watch, not the federal government. That's a victory for free speech. Sheesh, you'd almost think somebody in Washington was reading the Bill of Rights...