Judicial review

While a ruling will probably not be issued until late June 2008, the U.S. Supreme Court began hearing arguments Wednesday for what could turn out to be one of its most controversial decisions in decades. The U.S. Supreme Court is going to consider whether Guantanamo Bay prisoners have a Constitutional right to challenge their detentions in civil courts.\nThe Supreme Court has taken up the issue before, ruling in both 2004 and 2006 that detainees had a statutory, legal right (meaning the right was enshrined in normal laws passed by Congress) but not a constitutional right to contest their detainment before an independent judge. However, legislation forbidding detainees from seeking justice in a federal court without first going through a military tribunal was successfully passed, and these challenges to the new law are now forcing the Supreme Court to rule on a much more fundamental question: Do enemy combatants have rights under the U.S. Constitution?\nThe impact of the case will obviously be far-reaching. Guantanamo Bay has not been the only place in which detainees have been held “indefinitely,” nor has denying detainees the right to challenge their detainment been the only questionable practice committed by the administration. \nIt’s probably true that the United States treats its detainees a lot better now. Guantanamo detainees are housed in air-conditioned, metal and cement blocks. Many have single cells with individual lavatories, and the Joint Task Force in charge of the camp likes to brag that many of the detainees have gained weight. \nDespite this, it is still clear that many believe Sept. 11 has created circumstances that call for a fundamentally different way of viewing the rights of enemy combatants and suspected terrorists. Judge Michael B. Mukasey, recently confirmed as the United States Attorney General, refused to condemn waterboarding as torture, and presidential candidate Fred Thompson has called for a “judicial system that deals with the realities of terrorists and unlawful enemy combatants,” which sounds like a euphemism for a judicial system that stays out of the way. \nIf the Supreme Court rules that the “indefinite” detention of prisoners at Guantonomo Bay is anything less than completely unconstitutional, it will not be doing its job. The Constitution clearly states that the Writ of Habeas Corpus shall not be suspended “unless when in Cases of Rebellion or Invasion,” and it doesn’t specify that this right is reserved only to U.S. citizens. Guantanamo Bay, while not part of U.S. proper, is still leased by the United States, so the Constitution surely still applies there. \nSome would claim such a reading is far too simple and ignores the realities of national security in the 21st century, but the argument that national security should trump the rule of law, no matter how well- intentioned, is not terribly impressive. \nIt is in fact quite ironic that some conservatives, who lambaste judicial activism as well as the rights that have been inferred from the Constitution, such as the right to enter into a gay marriage or have an abortion, are now so eager to invent exceptions to long-held limitations on governmental power that are explicitly stated in the document.