On Monday, the Supremes ruled that not only did Yaser Hamdi — an American captured in Afghanistan — have most of the rights afforded accused criminals, but that the Gitmo detainees must also be afforded the opportunity to challenge their status. (The Jose Padilla case, in which an American citizen was arrested in the US on suspician of working on a dirty bomb plot, was handed back down on a technicality, but it seems clear from their Hamdi ruling that Padilla would enjoy at least the rights afforded Hamdi.)

No one was more surprised than I that the Court was willing to slap the Executive so hard; this is an astoundingly good thing for our Republic. As Justice O’Connor, writing for the majority, said:

We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the NationÕs citizens. […] Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. […] Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions. […] Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. [emph. added] Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process. Because we conclude that due process demands some system for a citizen detainee to refute his classification, the proposed “some evidence” standard is inadequate. Any process in which the Executive’s factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short. Hamdi v. Rumsfeld, elipses denotes elided citation

The Court makes it very, very clear that what the Executive has done — detain people on their say-so and refuse to allow any sort of judicial review or access to counsel — is wholly inappropriate and definitely unconstitutional. Thank God someone’s paying attention; even a Bush-friendly court couldn’t give ’em a pass on this bullshit.

Ashcroft, apparently unfamiliar with or contemptuous of the portions of the Constitution inconvenient to him, has had a predictable reaction, insisting that the Court has “given more rights to terrorists.” We submit that the only rights being withdrawn or granted here are those enshrined in our most basic law, and the only granting happening here is a restoration of rights illegally abrogated by an overzealous Executive. The Court says you may not imprison people indefinitely with no counsel or right of judicial review; it has NOT said you may not investigate and arrest terrorists. (That the Court had to even rule on this is a bit shocking, and is emblematic of the sort of power grab apparently acceptble to the ruling party; Ashcroft’s reaction makes it clear that HE thinks he ought to be able to lock anybody up he wants with no review, and I think that’s more than a bit scary.) Recall that none of these people have had any opportunity to challenge their status, not even U.S. citizens Padilla and Hamdi.

Some will insist that our Constitution ought not apply to “terrorists,” though we wonder how we can tell the terrorists from the rest without some judicial review. Simply trusting the executive branch doesn’t seem like a terribly wise move; there’s a reason we have three branches of government, and if you wondered why before, perhaps this sequence of events will remind you.