Davis & Benn: A Remarkable, Unexpected

But Welcome Sight

David Davis has aroused much eyeball-rolling from his party colleagues and faux derision from Labour at his bold decision to resign and fight a bye-election on the subject, in broad terms, of Liberty. Yet anything which can draw together on one platform Tony Benn and someone of otherwise a more right-wing cast altogether cannot simply be laughed off by our smug political elite.

Such is Labour’s conviction that its promotion of the Stasi State finds favour with Englishmen that it has not had the courage to put up a candidate to defend its position. After only two disastrous bye-elections it has simply folded its tent and left the field rather than risk come twenty-sixth after, to name but a few, the candidate of the Church of the Militant Elvis Party or the one standing under the label ‘Make Politicians History’. They are the real losers here.

In the United States the struggle for Liberty goes on, two hundred and thirty years after the American Revolution set our former colonies on the path to freedom. Of late the US Government has, in pursuit of its own defence, lost sight of the vital importance of balancing our needs for security against the dangers of eroding freedoms that were hard-won over centuries both there and in this country whose traditions gave birth to those of the United States.

So it is with considerable pleasure that I record some fine Judicial language on the topic of one of our essential liberties, that of the right to the issue of a writ of Habeas Corpus, the “The Great Writ” of habeas corpus ad subjiciendum, from the Majority of the United States Supreme Court in the case of BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE UNITED STATES, ET AL. [No. 06–1195.553 U. S. ____ (2008)], a case which was brought by a detainee at the Guantanamo Detention Camp.

In holding that the lower courts should entertain an application for the writ to issue, the majority said, inter alia, this:

Unlike the President and some designated Members of Congress, neither the Members of this Court nor most Federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security.

Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns.

Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

Our opinion does not undermine the Executive’s powers as Commander-in-Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.

It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

There are, of course, in these islands, some who would cheerfully lock up anyone they suspected, however tenuously, of being a terrorist and throw the key away. Many, but not all, of those would also probably favour castrating rapists and hanging child killers and such harmless bits of fun as dancing on the village green round a Maypole. They miss the point. Their liberty to express such views is, in part, guaranteed by such laws as this which go to make up a bundle of laws and rights which one might loosely call ‘The Liberties of England’.

Those in turn are, in part, what makes us Englishmen. To disown them is to disown ourselves.