Celebrating his 90th birthday next week after 35 years on the U.S. Supreme Court, Justice John Paul Stevens has announced that he will retire in June.
The fourth-longest-serving justice and the last of the moderate Republicans, appointed in 1975 by President Gerald Ford, Stevens will be remembered most for his defense of civil liberties in wartime – when the temptation is to allow fear and expediency to prevail and to dismiss the niceties of the law and the U.S. Constitution.
Stevens will go down in history for his staunch defense of “habeas corpus,” the notion that any time a person is detained, the government must produce the prisoner in person and state why he or she is being detained. This has been a bulwark against arbitrary power since the Magna Carta in 1215.
During the presidency of George W. Bush, in the aftermath of the 9/11 attacks on the United States, that long-standing doctrine came under threat with indefinite detentions at Guantánamo Bay, a legal netherland where neither the U.S. Constitution nor any law applied.
Stevens drew upon his World War II experience, where he had earned a Bronze Star, to challenge the Bush practice. As a clerk for Supreme Court Justice Wiley B. Rutledge after the war, Stevens had written key memos in a 1948 case on the wartime detention of 120 German-born U.S. residents, who were being held at Ellis Island even after the war.
Did they have the right to challenge their detention in a U.S. court? Stevens wrote to Justice Rutledge, “I should think that even an alien enemy ought to be entitled to a fair hearing on the question whether he is in fact dangerous.”
A half-century later, Stevens wrote the key decisions rejecting Bush administration practices in the detention of prisoners at Guantánamo Bay. In Rasul v. Bush (2004), Stevens wrote that the detainees did have the right to challenge their detention in American courts (a 6-3 decision). In Hamdan v. Rumsfeld (2006), Stevens wrote on the issue of military tribunals that “the Executive is bound to comply with the Rule of Law.”
Stevens believed, courageously during wartime, that liberty and security can be reconciled. He stood for the principle that fair process, even in wartime, is no threat to the United States.
Still spry as he approaches 90, Stevens may be around for a long time to continue defending that enduring principle.