Liberty and the pursuit of happiness
While the Military Commissions Act stripping Gitmo prisoners of the right to challenge their arrest (habeas corpus) is before the Supreme Court, it’s instructive to look at the same issue during Indira’s Emergency:
The case of Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, popularly known as the Habeas Corpus case, came up for hearing in front of the Supreme Court. A bench with five of its seniormost judges decided for unrestricted powers of detention during emergency… The only dissenting opinion was from Justice H. R. Khanna, who stated:
detention without trial is an anathema to all those who love personal liberty…
… Khanna had mentioned to his sister: ‘‘I have prepared my judgment, which is going to cost me the Chief Justice-ship of India.’’ True to his apprehensions, he was superseded for the post of Chief Justice… Justice Khanna remains a legendary figure among the legal fraternity in India for this decision…
The New York Times wrote of this opinion: “The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court’s decision appears close to utter surrender.” [Link]
Indeed, the doctrine of habeas corpus was refined during British colonial rule in India, and later expanded under free India so anyone could challenge someone’s detention, not just the detainee. The NYT still supports this position; the wingnut WSJ editorial page, on the other hand, ran an editorial yesterday arguing that if we don’t allow the president to jail anyone anywhere forever without trial, we’re ‘micromanaging a war.’
Tories, the lot of ‘em.
on Friday, December 7th, 2007, 2:45 pm in Issues, Law › 
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Awww! What’s a few bodies here and there in pursuit of the grand vision, the shining path. When a tree falls in the forest there are sure to be some twigs snapping here and there. Of course, human rights are contradictory to the rights of the people. Or, you might say, keeping the riff-raff is no benefit, losing them is no loss.
WSJ editors are a bunch of illiterate ignorant inbred assmonkeys.
POGG over liberty and the pursuit of happiness ANY DAY.
When your fighting a war against an abstraction like terrorism (whose definition nobody can define), all that legal mumbo-jumbo that governs the treatment of Gitmo prisoners goes out the door. The international laws that govern such things are designed for countries fighting other countries, not one country fighting terrorists (whomever they may be). We are on dangerous legal ground here. The courts will define the counters, for now, but eventually government and international bodies will have to come up with some guidelines.
thought you guys might be interested: justice p.n.bhagwati, who sided with the majority in the “habeas corpus” case, happens to be the elder brother of columbia university’s resident free trade guru, jagdish bhagwati.