It is a very instructive day in the news if you are interested in constitutional law. Yesterday, the US courts confirmed the primacy of the person and the bar on making things up:
The appeals court yesterday ordered the trial judge in the case to issue a writ of habeas corpus directing the secretary of defense to release Mr. Marri from military custody “within a reasonable period of time to be set by the district court.” The government can, Judge Motz wrote, transfer Mr. Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with a grand jury proceeding or detain him for a limited time under a provision of the U.S.A. Patriot Act. But the military cannot hold him, Judge Motz wrote. “The president cannot eliminate,” she wrote, “constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention.”
These sorts of things are difficult cases and we have a natural gut reaction that bad people ought to be treated badly, differently. The trouble is the job of determining who and how has to be done on a principles and public basis or there is a veering towards a genial sort of authoritarianism where others take care of things you do not know about in ways that you do not understand. They become your betters, too, as a result.