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Mildred and Richard LovingFifty years ago last month, Richard Loving and Mildred Jeter got married in the District of Columbia. Richard and Mildred met and fell in love in Caroline County, Virginia, where their families had lived for generations, but in 1958 interracial marriages were illegal in Virginia. Mildred said later that she didn’t even know about the law, but she thought Richard did. They went to D.C., picked a preacher out of the phone book, got married, and came home to Caroline County.

But Virginia, then as now, saw no reason to honor the full faith and credit clause of the Constitution. Getting married outside the state didn’t mean you were married in Virginia. In fact, the law specifically prohibited Virginia residents who couldn’t marry within the state from traveling outside the state to marry. (The same kind of law is still in effect in some states, and could be applied against same-sex couples from those states if they went to California or Canada to get married.) In July, Mildred and Richard were awakened at 2 a.m. to the sight of the sheriff standing at the foot of their bed. Caroline County Sheriff R. Garnett Brooks and two deputies shone flashlights into the couple’s faces.

Judge Leon Bazile“Who’s this woman you’re sleeping with?” barked the sheriff.

“I’m his wife,” said Mildred.

That’s when Mildred found out it was illegal for an interracial couple to marry in Virginia, and that it was illegal for an interracial couple in Virginia to go elsewhere to get married, too. The servants of the law rousted the couple out of bed and arrested them. At the October session of the Caroline County Circuit Court, a grand jury indicted them for violating Virginia’s anti-miscegenation laws. On 6 January 1959, the Lovings pled guilty to the charge, and Judge Leon Bazile sentenced them to a year in prison, to be suspended on the condition that they leave the state and never return together for twenty-five years. Judge Bazile, not unlike today’s marriage opponents, invoked the will of God in his decision:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

The Lovings paid $72 in court costs (about $525 in 2008 dollars), packed their bags, and moved to the District of Columbia. Over the next few years, they made furtive visits to see their friends and relatives in Virginia, never traveling together. They didn’t like city life, and they wanted to go home for good. Neither one of them had ever lived anywhere but Caroline County before.

In 1963, Mildred Loving wrote to Attorney General Robert Kennedy to ask him a question. If the Civil Rights Act were passed, would she and Richard be able to go home? Kennedy referred the Lovings to the American Civil Liberties Union, and soon they had attorneys, Bernard S. Cohen and Philip J. Hirschkop. With their help, the Lovings would challenge Virginia law.

Bernard S. CohenCohen told the Lovings some of the legal approaches they could take in the case, but the Lovings were quiet people, uninterested in constitutional law. They weren’t out to change the world; they just wanted to go home. Richard Loving said, “Mr. Cohen, tell the court I love my wife, and it is just unfair that I can’t live with her in Virginia.” Years later, Cohen recalled that when he told the Lovings their case would probably go to the Supreme Court, Richard’s jaw dropped.

On 8 November 1963, the Lovings filed suit in Virginia asking that their convictions be vacated on the grounds that Virginia’s marriage laws violated the Fourteenth Amendment. After nearly a year with no results, they filed a class action suit in the U.S. District Court on 28 October 1964, asking the Court to find Virginia’s marriage laws unconstitutional. On 22 January 1965, the state trial judge upheld the Lovings’ convictions, and they appealed to the state Supreme Court. The U.S. District Court continued the case to allow it to play out in Virginia.

The Supreme Court of Appeals of Virginia reversed the Lovings’ convictions, but refused to recognize their marriage. The Court cited an earlier case that had said allowing interracial marriage would give rise to “a mongrel breed of citizens,” and “the obliteration of racial pride.” As Cohen had predicted, the Lovings were headed for the United States Supreme Court.

The Supreme Court agreed to hear the case in December 1966, and heard arguments on 10 April 1967. Cohen declared, “The Lovings have the right to go to sleep at night knowing that if should they not wake in the morning, their children would have the right to inherit from them. They have the right to be secure in knowing that, if they go to sleep and do not wake in the morning, that one of them, a survivor of them, has the right to Social Security benefits.”

If you’ve been following the arguments against same-sex marriage, you can probably guess what Virginia’s arguments were. They said that the framers of the Constitution and the authors of the Fourteenth Amendment clearly didn’t intend to legalize interracial marriage. They said that marriage laws were not for the courts to decide, but should be up to the state legislatures. They said that Virginia’s marriage laws didn’t deny equal protection under the law, because everybody was equally allowed to marry a member of his own race. If you care about equal marriage, you’ve heard those same arguments more recently.

One of the ways conservatives both black and white try to discredit our movement is to say that it’s not like the African-American civil rights movement. Equality for lesbians and gay men is whole different kind of thing. People who ought to know better say that African-Americans deserve equal rights, but lesbians and gay men don’t. The immortal Coretta Scott King gave the lie to that argument, saying that her late husband, Dr. Martin Luther King, supported equal rights for gay people. She reminded them, too, that the great civil rights hero Bayard Rustin, the organizer of the March on Washington, was gay.

Still people like the Kings’ daughter, the Rev. Bernice King, and her cousin Dr. Alveda King are not ashamed to belie themselves. They are not ashamed to use their famous name to fight for bigotry. Martin and Coretta King marched for equality; Bernice King marches for inequality. If there were a hell, it would gape for the likes of Bernice and Alveda King.

I want you to remember, even if some people prefer to forget, that the Commonwealth of Virginia used the same arguments against interracial marriage in 1967 that Christian zealots use against same-sex marriage today. This is the way it’s always been. The courts have no right to decide the issue. The laws as they stand don’t deny equal protection to anybody. Changing the law would be bad for children. Changing the law would be bad for society. It was bullshit then, and it’s bullshit now ― and now as then, everybody who isn’t blinded by bigotry and hatred knows it’s bullshit.

Chief Justice Earl WarrenBut back to the Lovings. On 12 June 1967, the Supreme Court unanimously overturned the laws of the sixteen states that still prohibited interracial marriage. The Court said, in an opinion delivered by Chief Justice Earl Warren:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

“I feel free now,” said Mildred Loving.

By that time, the Lovings had already moved back to Virginia. Today, the 12th of June is Loving Day, a celebration of the love between interracial couples, and the Lovings are heroes to millions. But the Lovings lived out the time left to them quietly. They lived seventeen years as man and wife, less than half of it in a marriage recognized by their home state. On 29 June 1975, a drunk driver hit their car, and Richard was killed. Mildred lost an eye, and her health was never the same, but she lived on for nearly thirty-three years as Richard’s widow. She never remarried. She died of pneumonia on 2 May 2008.

Mildred Loving never understood why she was a hero. The year before she died, she said, “It wasn’t my doing. It was God’s work.” She didn’t like to talk about herself; didn’t like to give interviews. When the preacher at her church compared her to Rosa Parks, she demurred.

“I don’t feel like that,” she said. “Not at all. What happened, we really didn’t intend for it to happen. What we wanted, we wanted to come home.”

Someday, America will do the right thing by its lesbian and gay citizens. Our fight may be tougher and longer than the Lovings’ fight, but we will win it. The preachers will fight us harder than they fought the Lovings, but we will win. The people who think they know the will of God, and think the law is a tool to force their religious superstitions on others, will fight us tooth and nail, but we will win. If we ever go to the Supreme Court, you can bet we won’t win a unanimous decision. We might not win at all the first time, but we will win eventually. There’s a black man living in Virginia today with his white wife, a man who sits on the Supreme Court, who’s likely to vote against us. But we will win.

The Christian bigots who fight against us know their day is nearly over; that’s why they’re so concerned to fight against us now, while they still can. They’re fighting for hate, though, and we’re fighting for love. I still believe that love is stronger than hate. Those who spread hate in the name of Jesus might win in California this November. They might even get the constitutional amendment they want. I don’t know if America is ready to do the right thing yet. Time will tell. But whatever they do today can be undone by the same process tomorrow. However long it takes, someday we’ll all feel free. Someday we can all go home.

For now, I’ll leave you with the words of Mildred Loving. On the fortieth anniversary of the Supreme Court decision in Loving v. Virginia, that quiet woman issued a statement:

Loving for All

By Mildred Loving

Prepared for Delivery on June 12, 2007,
The 40th Anniversary of the Loving vs. Virginia Announcement

When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight. We were in love, and we wanted to be married.

We didn’t get married in Washington because we wanted to marry there. We did it there because the government wouldn’t allow us to marry back home in Virginia where we grew up, where we met, where we fell in love, and where we wanted to be together and build our family. You see, I am a woman of color and Richard was white, and at that time people believed it was okay to keep us from marrying because of their ideas of who should marry whom.

When Richard and I came back to our home in Virginia, happily married, we had no intention of battling over the law. We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is?

Not long after our wedding, we were awakened in the middle of the night in our own bedroom by deputy sheriffs and actually arrested for the “crime” of marrying the wrong kind of person. Our marriage certificate was hanging on the wall above the bed.

The state prosecuted Richard and me, and after we were found guilty, the judge declared: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” He sentenced us to a year in prison, but offered to suspend the sentence if we left our home in Virginia for 25 years exile.

We left, and got a lawyer. Richard and I had to fight, but still were not fighting for a cause. We were fighting for our love.

Though it turned out we had to fight, happily Richard and I didn’t have to fight alone. Thanks to groups like the ACLU and the NAACP Legal Defense & Education Fund, and so many good people around the country willing to speak up, we took our case for the freedom to marry all the way to the U.S. Supreme Court. And on June 12, 1967, the Supreme Court ruled unanimously that, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” a “basic civil right.”

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

Read more:

Bernard S. Cohen and Evan Wolfson have a blog.


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Rasul v. Bush.

Shafiq RasulBeginning in 2002, habeas corpus petitions began to be filed on behalf of the prisoners at Guantánamo Bay. The first of these to reach the Supreme Court was Rasul v. Bush, filed on 19 February 2002 by the Center for Constitutional Rights on behalf of Shafiq Rasul and Asif Iqbal, both British citizens, and David Hicks, an Australian citizen.

Rasul v. Bush claimed that the Bush administration had violated the Due Process clause of the Fifth Amendment. The administration held that because the men were not American citizens and were being held outside of U.S. territory, federal courts had no jurisdiction to hear the case. The District Court agreed with the administration, dismissing the case on 30 July 2002. A similar case, Habib v. Bush, was dismissed on 8 August. The United States Court of Appeals for the District of Columbia heard the cases together and upheld the District Court ruling, finding that no United States court had jurisdiction over Guantánamo Bay. The Supreme Court agreed to hear the case on 10 November 2003, and it was argued before the Court on 20 April 2004.

On 28 June 2004, the Court reversed the lower court decisions, finding that United States courts do have jurisdiction to hear challenges to the detentions at Guantánamo. (For the full text of that decision, see FindLaw.) By the time the case was decided, Rasul and Iqbal had already been released and repatriated to the United Kingdom.

Hamdi v. Rumsfeld.

Yaser Esam Hamdi was an American citizen born in 17 November 1979 in Baton Rouge, Louisiana, to Saudi Arabian parents. Hamdi’s parents had returned to live in Saudi Arabia when Hamdi was a child, taking him with them. He was captured in Afghanistan in 2001. The government claimed that Hamdi was fighting with the Taliban, while Hamdi’s father claimed he was in Afghanistan as a relief worker.

Hamdi’s father, Esam Fouad Hamdi, filed a habeas corpus petition in June of 2002. The District Court ruled that Yaser Hamdi had the right to a public defender. The Court of Appeals reversed the District Court decision, returning the case to the District Court with instructions to give proper deference to the government’s “intelligence and security interests.”

The District Court found that there was insufficient evidence before it justify holding Hamdi, and directed the government to produce documents supporting its case against him. The Court of Appeals reversed the District Court ruling again, finding that Hamdi was captured in a war zone, that the disposition of his case fell under the executive branch, and that no court had jurisdiction to hear a challenge to his status. Hamdi’s father appealed to the Supreme Court.

The Supreme Court heard arguments in the case on 28 April 2004, and ruled on the case on 28 June 2004, the same day as Rasul v. Bush. In an 8-1 decision, the Court ruled that the government may not hold a United States citizen indefinitely without due process. Unfortunately, the eight Justices who rejected the government’s arguments did so in three different opinions, which further complicated matters.

Justice Sandra Day O'ConnorJustice O’Connor, writing for the plurality, found that the Authorization for Use of Military Force, passed by Congress on 14 September 2001, authorized the president to detain unlawful combatants. However, O’Connor found that this authority was not unlimited, and that detainees were entitled (a) to know the charges against them and (b) to be heard. O’Connor found that due to the circumstances of military conflict, the government wasn’t bound by normal rules like the ban on hearsay and that the government didn’t have the full burden of proof. She suggested that the Department of Defense create tribunals to review the status of detainees. O’Connor was joined in this opinion by Chief Justice Rehnquist and Justices Kennedy and Breyer.

Justice Souter, joined by Justice Ginsburg, concurred with the plurality that Hamdi was entitled to due process, but dissented from the plurality’s opinion that the Authorization for Use of Military Force Against Terrorists established the government’s authority to detain unlawful combatants.

Justice Scalia, joined by Justice Stevens, found that unless Congress suspended habeas corpus, Hamdi must be tried under normal criminal law. Since the Constitution only grants Congress the authority to suspend habeas corpus in times of invasion or rebellion, Scalia’s opinion, had it prevailed, would have have meant that Hamdi was entitled to a regular criminal trial. This was best of the four opinions, if you ask me — which is something you’ll rarely hear me say about one of Scalia’s decisions.

Justice Thomas was the only Justice who held that the government had the authority to hold Hamdi without due process.

Combat Status Review Tribunals.

In response to the plurality’s unfortunate suggestion in Hamdi v. Rumsfeld, the Department of Defense created Combat Status Review Tribunals to review the status of detainees. The tribunals were presided over by members of the military, and prisoners were allowed, but not required, to attend. From details that have come out since 2004, we now know that the tribunals, at least as they were first conducted, were a complete sham, in which unlawful combatant status was determined on the basis of very flimsy evidence and even no real evidence at all.

Military Commissions.

On 21 March 2002, the Department of Defense had issued Military Commissions Order No. 1 for the creation of military commissions to try non-U.S. citizens in “the War Against Terrorism.” The order directed that the commissions were to consist of between three and seven commissioned officers of the United States armed forces, as appointed by the Secretary of Defense or his designee. A judge advocate of any U.S. armed force was to be selected from the appointees to serve as Presiding Officer. The Presiding Officer was authorized to decide whether the hearing should be public or closed, and whether the defendant would be permitted to know what evidence was presented against him.

Torture by U.S. troops.

Beginning in 2003, Amnesty International began to makes claims that prisoners held at Abu Ghraib prison in Iraq by United States forces were being tortured. On 28 April 2004, the CBS television show 60 Minutes made the general public aware of the torture in a story that included photographs of prisoners being tortured by U.S. troops. The photos were published worldwide, causing an outcry against these practices in the U.S. and around the world. It was later revealed that prisoners had also been murdered by U.S. troops. Despite the fact that Dick Cheney’s office had been instrumental in encouraging these practices, the administration attempted to dismiss the practice of torture as the excesses of a few rogue soldiers. A few soldiers were court martialed and convicted of torture, dereliction of duty, conspiracy, committing indecent acts, and similar charges; none was convicted of murder. Staff Sergeant Ivan Frederick was sentenced to eight years in prison in October 2004. (He was paroled in October 2007.) In January 2005, Specialist Charles Graner was sentenced to ten years in prison. Specialist Lynndie England, the mother of Graner’s child, was sentenced to three years in prison in September 2005. (She was paroled in March 2007.) As of this writing, no other military personnel have received any prison sentence of more than a year for the abuse at Abu Ghraib. None of the civilian administration officials who put the policies into place have been held legally accountable. During the Abu Ghraib scandal it was revealed that U.S. personnel at Guantánamo had also tortured prisoners.

The Detainee Treatment Act of 2005.

In 2005, Senator John McCain of Arizona, who had been tortured while a prisoner of war in Vietnam, began to take steps to see that torture by U.S. troops was made explicitly illegal. His efforts eventually culminated in the Detainee Treatment Act of 2005, which was attached as an amendment to the Department of Defense Appropriations Act of 2006. However, McCain’s efforts were severely undercut by a number of factors, including the following:

• The Act referred to Field Manual 34-52 Intelligence Interrogation, and the United Nations Convention Against Torture. The Bush administration had already interpreted the Convention Against Torture as allowing any torture that didn’t cause organ failure, impairment of bodily function, or death. After the Act was passed, FM 34-52 was rewritten, with ten pages of the new manual classified.

• The Act exempted the CIA from its provisions. (When Congress later passed a similar act covering the CIA, McCain voted against it and recommended that Bush veto it.)

• The Act gave the Circuit Court of Appeals of the District of Columbia exclusive jurisdiction over cases arising from Guantánamo.

• The Act was undermined by the Graham-Levin Amendment, which was also attached to the Department of Defense Appropriations Act of 2006. The Graham-Levin Amendment allowed the Department of Defense to use evidence obtained by torture and also denied habeas corpus to some prisoners.

The net effect of the Detainee Treatment Act was not to prevent the use of torture by U.S. personnel, but to provide a veneer of respectability with little or no actual protection, while providing further grounds for the administration to justify torture. Several commentators (for example, Tom Engelhardt, Geoffrey S. Corn, and Douglas McNabb) pointed out the deficiencies in the Act soon after it was passed, and later events have borne out their criticism.

Hamdan v. Rumsfeld.

Salim HamdanSalim Ahmed Hamdan is a Yemeni citizen, born in Hadramout, Yemen, in 1970. He was captured in Afghanistan in November 2001, and has admitted that he was Osama bin Laden’s personal driver. Hamdan’s review before the Combatant Status Review Tribunal found that he was an enemy combatant, and in July 2004 he was charged with conspiracy to commit terrorism.

A habeas corpus petition filed on Hamdan’s behalf claimed that the military commissions created by the Department of Defense in 2002 were illegal because they violated both the Geneva Conventions and the Uniform Code of Military Justice. The District Court found in Hamdan’s favor on 9 November 2004, ruling that he couldn’t be tried before a military commission unless it had first been determined that he wasn’t a prisoner of war. On 15 July 2005, the Court of Appeals unanimously reversed the District Court decision. The three-judge panel that made this decision included Judge John G. Roberts, whom G. W. Bush nominated as Chief Justice of the Supreme Court on 19 July. Roberts was confirmed by the Senate on 29 September and took the oath of office as Chief Justice the same day.

The Supreme Court agreed to hear Hamdan’s case on 7 November 2005, and heard arguments on 28 March 2006. Justice Scalia, speaking in Switzerland earlier in March, had responded to a question about the detainees at Guantánamo by saying, “If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son, and I’m not about to give this man who was captured in a war a full jury trial. I mean it’s crazy.” Critics demanded that Scalia recuse himself from the case, but he refused. Chief Justice Roberts recused himself because he had ruled in District Court decision. The government argued that the case should be dismissed because the Supreme Court had no jurisdiction under the Detainee Treatment Act.

The eight remaining Justices ruled on 29 June 2006 in a total of six opinions. Justice Stevens, joined in part by Justices Souter, Ginsburg, and Breyer, found that the Supreme Court did have jurisdiction, that it was doubtful whether the administration had the authority to create military commissions, and that the military commissions created by the administration were in violation of the Uniform Code of Military Justice and the Geneva Conventions, and could not be used to try Salim Hamdan. This opinion also stated that it was doubtful whether Hamdan could be tried as a war criminal for his agreement to enter into Osama bin Laden’s employ in 1996, before the present armed conflict even started.

Justice Breyer wrote a concurring opinion suggesting that “[n]othing prevents the President from returning to Congress to seek the authority he believes necessary.” Justices Kennedy, Souter and Ginsburg joined in this decision.

Justice Kennedy concurred in part with Justice Stevens’ opinion, finding the the military commissions raised “separation-of-powers concerns of the highest order,” being located within a single branch, and that the commission created by the administration were unauthorized. He was joined in that part of his opinion by Justices Souter, Ginsburg, and Breyer. Justice Kennedy also found that since the military commissions were without any legal basis, being unauthorized by the Uniform Code of Military Justice, there was no need to comment further on the case.

Justice Scalia, joined by Justices Thomas and Alito, dissented from the Court’s finding, accepting the government’s argument that the Court had no jurisdiction in the case. Justice Scalia also found that prisoners at Guantánamo had no standing to petition for writ of habeas corpus.

Justice Thomas dissented in an indignant opinion, the main point of which was that the Court had no jurisdiction in the case. Justice Thomas was joined in his opinion by Justice Scalia and in part by Justice Alito.

Justice Alito, joined in part by Justices Scalia and Thomas, agreed that the Court had no jurisdiction in the case and further found that the military commissions as set up by the administration were legal and satisfied constitutional and legal requirements.

The result of all this was that Hamdan could not be tried by a military commission as established by the administration, but was still subject to prosecution under a legally-constituted commission, should one be created.

Next: The Military Commissions Act.


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Supreme Court of the United StatesSince last Thursday, the pundits and politicians have been buzzing about the Supreme Court’s decision in Boumediene v. Bush, with some hailing the return of Constitutional law to the United States, and others bemoaning the decision as the end of life as we know it. I’m going to use the next few posts to take a closer look at the decision. First: what they’re saying.

The right wing has been sputtering through the weekend about the ruling, and can be expected to go on sputtering as long as anybody’s listening. They’re on familiar ground: fearmongering and attacking the Supreme Court.

The Wall Street Journal, referring to Justice Anthony Kennedy (who wrote the majority opinion) as “President Kennedy,” sniffs that the majority Justices are “unelected” and “have declared their war-making supremacy over both Congress and the White House.” The American Spectator calls Kennedy “Lord Kennedy,” and says that “nothing can stop him when he’s intent on expanding his fiefdom.” Calling the decision a “Supreme Disgrace,” the National Review says, “The United States Supreme Court now routinely invents constitutional rights to support whatever social, political, and legal goals it deems desirable.” These are the relatively sober voices of the Republican Party, you understand. Over at WorldNetDaily, Joseph Farah’s headline reads “Justices side with the enemy.”

Likewise, hawkish politicians are upset. “We’ll abide by the court’s decision. That doesn’t mean I have to agree with it,” pouts G. W. Bush. His supporters prefer fearmongering to pouting. Joe Lieberman John McCain, running for Bush’s third term, calls Boumediene v. Bush “one of the worst decisions in the history of our country.” Senator Lindsey Graham of South Carolina predicts that “Americans are going to be shocked to find that that mastermind of 9-11, Khalid Sheikh Mohammed, now has the same legal standing as an American citizen.” Senator Joe Lieberman of Connecticut warns that “The Supreme Court’s decision fails, in a dramatic way, to appreciate that we are at war and that our enemies are relentless in their pursuit of our destruction.” (Lieberman, who ran on the ticket of the Connecticut for Lieberman Party, caucuses with the Democrats and is technically not a Republican, though it’s hard to tell sometimes.)

From the Court itself, Justice Antonin Scalia, in a furious dissent, declares that the ruling “will almost certainly cause more Americans to be killed.” Scalia got so mad that he set aside his strict constructionist views to refer to G. W. Bush as “the Nation’s Commander in Chief,” forgetting that free citizens don’t have a Commander in Chief, and that the Constitution Scalia swore to uphold makes the President the Commander in Chief of the armed forces, not the Commander in Chief of the Nation.

While the authoritarians fume, those of libertarian sentiments celebrate, though in more restrained terms. “We are a better nation, and more secure,” says the Detroit Free Press. Bob Braun, writing for Newhouse News Service, says the ruling “goes straight to the question of just what sort of country we are.” Steve Chapman of the Chicago Tribune calls the ruling “a welcome development.”

Liberals have good reason to be cautious, because for the GOP, this is all about the election, and the Democrats are going to have to be prepared to defend this ruling politically. The Republicans have already signaled that they hope to seize a political advantage by doing the only thing they still do really well: Threatening that the terrorists will get you if you don’t vote Republican.

Next: The background of the case.


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