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Adiós, Guantánamo
"The Nation will live to regret what the Court had done today," Justice Antonin Scalia writes at the end of his dissent in Boumediene v. Bush, the case in which a bare majority of the Supreme Court, for the first time ever, extended rights under the U.S. constitution to enemy combatants who have never set foot on U.S. soil.It's worth noting that the nation has lived to regret things the court has done in earlier wars. In Schenck v. U.S. (1919), the court upheld the conviction of a Socialist Party leader for distributing an anticonscription flier during World War I--material that would unquestionably be protected by the First Amendment under Brandenburg v. Ohio (1969). In Korematsu v. U.S. (1944), the court held that the government had the authority to ban Japanese-Americans from certain areas of California, simply on the ground that their ethnic heritage rendered their loyalty suspect. Korematsu has never been overturned, but there is no doubt that it would be in the vanishingly unlikely event that the question ever came up again. This war was different. Almost immediately after the 9/11 attacks, we began hearing dire warnings about threats to civil liberties. Five members of the high court seem to have internalized these warnings. As Justice Anthony Kennedy put it in his majority opinion today, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Kennedy and his colleagues seemed determined to err on the side of an expansive interpretation of constitutional rights. And err they did. As Justice Scalia writes: [Today's decision] will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today. In establishing the detention facility at Guantanamo Bay, President Bush relied on a Supreme Court precedent of more than a half century's standing, Johnson v. Eisentrager (1950), which held that nonresident alien enemy combatants had no right to habeas corpus. As Scalia explains: Had the law been otherwise, the military surely would not have transported prisoners [to Guantanamo], but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves. This points to a key limitation in today's ruling. The majority distinguished Guantanamo from the facility at issue in Eisentrager--a U.S.-administered prison in occupied Germany--on the ground that although the Guantanamo Bay Naval Base is technically on Cuban territory, America exercises "complete jurisdiction and control" over it. Thus, detainees have constitutional rights pursuant to today's ruling only if they are held at Guantanamo. What does Boumediene mean in practice? Almost all Guantanamo detainees already have lawyers and have petitioned for habeas corpus. Those cases will go forward in the Washington, D.C., federal trial court. The judges there will have to settle on a standard of proof, and to rule on such tricky questions as how much classified material the government is obliged to provide to terrorists and their lawyers. Since the military's existing procedures are already overly lenient--Scalia lists several cases of released detainees showing up on the battlefield--it seems unlikely that many detainees will end up winning release. Both Barack Obama and John McCain have said they want to close down Guantanamo, and this ruling makes that outcome more likely. There is little advantage to the U.S. in sending enemy combatants to a facility where they will immediately be able to lawyer up, and indeed, Guantanamo has admitted few new detainees in the past several years. A notable exception occurred in 2006, when President Bush transferred Khalid Sheikh Mohammad and a dozen or so other "high value" detainees there--a dramatic action that helped galvanize Congress to pass the Detainee Treatment Act This turns out to have been a mistake. KSM & Co. now have "constitutional rights." Had they been kept where they were, wherever that was, this would not be the case. It's possible that Scalia is wrong when he predicts more Americans will die as a result of this ruling. It may be that al Qaeda is a weak enough enemy that America can vanquish it even with the Supreme Court tying one hand behind our back. Anyway, keeping future detainees away from Guantanamo should prevent them from coming within the reach of the justices' pettifogging. Perhaps decades from now we will learn that detainees ended up being abused in some far-off place because the government closed Guantanamo in response to judicial meddling. Even those who support what the court did today may live to regret it. Posted by: ryuge 2008-06-13 |
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