The latest set-back for the Bush Administration is entitled
Boumediene v. Bush and, IMHO, the conservatives are quite correct in being really upset. Because Justice Kennedy has finally made his point that the Constitution is a limiting document, designed to define and restrict the behavior of the agents of government in exchange for their having been granted the power to use force. As one of the commenters on the News Hour pointed out, the implication of the decision reaches much further than the prison on Guantanmo. In establishing that the Constitution follows the flag, it will affect U.S. government actions all around the globe.
What that means is that, regardless of where on the globe, the agents of the United States government are active, their actions are subject to the same limitations, prohibitions and directives as they are at home. Not only has the distinction between alien and citizen to define behavior been thrown out, but it's no longer going to be possible to ignore, for example, the regulations designed to protect the environment when the U.S. military engages in overseas operations (such as targeting the reefs around Guam in practice bombing runs).
Of course, that U.S. law is more stringent is what the Bush Administration argued in opting out of the jurisdiction of the International Court and claiming immunity for American military and contractual personnel in Afghanistan and Iraq. But, in practice, it then failed to enforce many of the provisions, largely because of a belief that the law is aimed towards directing and protecting individuals' behaviors, rather than at restricting the behavior of government agents. The protection of individual rights and freedoms is a consequence of the restrictions on the use of force/power by the agents of government; not the cause. Government isn't tasked with protecting the population, as Bush/Cheney are wont to argue; the people's rights and liberties just end up being protected, when the functions of government agents are limited to what's been specifically permitted.
As I've argued before, the regimen for the ordinary person (regardless of his or her social condition--i.e. citizen or alien) is different from that imposed on government officials. Individual behavior is addressed by specific prohibitions as codified in the criminal law. Behavior that's not prohibited is considered to be allowed. The agents of government, on the other hand, are restricted to performing only those tasks which are specifically permitted or demanded (what they may and/or must do). That this regimen is not attractive to Bush/Cheney is not surprising, since it's rather obvious that they got into governing so they could tell the people what to do.
In practice, the agents of the United States government have been rather cavalier about complying with the limitations imposed by the United States Constitution for some time, when they were conducting operations on foreign soil. Not to mention the blatant disregard for other nations' laws by the intelligence agencies. However, in recent years there's been a consistent effort to distinguish legal and illegal behavior on the basis of whether the individuals were/are citizens of the United States (at home or abroad) or aliens and to re-enforce that distinction by arguing that the Constitution only applies to government interactions with U.S. citizens here at home. This despite the fact that the Constitution makes no such distinction, except in regard to citizen participation in government either as an elector or as an elected or appointed official/agent.
Was it wishful thinking or a lack of legal training which led to a lot of government lawyers opining that whatever the executive hadn't been prohibited from doing, it could--to overlook that a different regimen applies to civilians and government agents? Maybe it was just hubris or a refusal to come to terms with the fact that, under our system, the power to govern resides with the people. When you come right down to it, government BY the people has only just begun to be realized--now that all citizens not only have access to the ballot, but are entitled to access and assess all the information they require to determine that their interests are being served, or not.
Indeed, the assumption that the people govern has perhaps blinded us to the importance of legislation such as the Freedom of Information Act, without which it's not possible for the citizens to know what's being done in their name. It's obviously not been overlooked by those who prefer a return to the old days of the ruling elite. What else is the surge in the volume of classified (secret) information but an effort to restore the closed door and the smoke-filled room?
What's truly ironic about the Boumediene v. Bush decision is that it needn't have had to come to that--to having the supremacy of the Constitution over the behavior of the agents of government affirmed. If Bush/Cheney had been satisfied to comply with the earlier decisions and guaranteed the rights of those it had taken captive in foreign lands, the question of whether the Constitution follows the flag wouldn't have come up. It was because the Bush lawyers argued that the Constitution does not extend to the behavior of U.S. government agents on foreign soil that the Supreme Court was able to rule that it does and set a precedent that may well extend to the 750 U.S. military bases and installations around the globe, regardless of whether or not the foreign owners give us permission to wreck havoc there.
