This Is What a Failed Revolution Looks Like

Slate's blog on legal issues.
June 13 2008 12:02 PM

This Is What a Failed Revolution Looks Like

I n the Military Commissions Act of 2006, the president and the Republican-controlled Congress said to the court: Stop meddling in the handling of Guantanamo detainees. We do not think that habeas extends to Guantanamo, and even if it does, we've produced a constitutionally adequate substitute.

In Boumediene , the court responded:Tto the contrary, constitutional habeas does extend to Guantanamo, and the remedy you've offered is not adequate.

It is still available to the president and Congress to try to suspend the writ, and the court could then decide whether the suspension was successful. However, there is almost no chance that the current Congress would agree to suspend the writ. It is also likely that the Congress that passed the MCA would not have voted to suspend the writ if the choice were clearly posed on those terms and a clear statement of intent to suspend was written into the legislation. In any case, it is likely that if the MCA were presented to Congress today, much of it would not have passed.

And that is precisely the point. Boumediene is further proof, if any were necessary, that the constitutional revolution proposed by the Bush administration after Sept. 11, 2001, has failed.

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Jack M. Balkin is Knight professor of constitutional law and the First Amendment at Yale Law School.