Balancing Gitmo

Some of them have been held for as long as six years without charge, but the Supreme Court decided last Thursday that detainees being held at Guantanamo Bay could indeed appeal their detention in U.S. Federal courts. \nSuch was exactly the decision I had hoped for when I found out the Court had decided to hear the case last December. Many critics claimed that extending full habeas corpus rights to Guantanamo prisoners would be setting a precedent to give such rights to prisoners being held in actual warzones (say Iraq or Afghanistan). I thought it was clear that given the long-term lease the U.S. has over Guantanamo Bay and the fact that it exercised exclusive sovereignty meant that U.S. constitutional rights still applied there. Even putting constitutional issues aside, I had long felt that supporters of Guantanamo Bay downplayed how much the facility, and its exceptional legal standing, served as a symbol of hypocrisy to those abroad, to whom we most needed to appeal.\nIt is not clear just how important this Supreme Court ruling will turn out to be. George Bush will no longer be president in a matter of months and both Barack Obama and John McCain seem much more concerned about the legal and ethical dilemmas involved with fighting terrorism. In effect, the ruling has come at a time when Guantanamo already doesn’t seem to have much of a future. \nStill, it is important that the Court has at least set the record straight. The most disappointing part of the ruling was not that it came so late but rather that it was such a close decision. \nJustice Anthony Kennedy joined Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer – generally considered to represent the more liberal wing of the court. They formed the majority against the more conservative Clarence Thomas and Antonin Scalia as well as John Roberts and Samuel Alito – Bush’s own two appointees. \nThe fact that this was a 5-4 decision does not make it easier to swallow when one closely examines the arguments of the dissenters. John Roberts included plenty of harsh words for “judicial activists” whom he claims were taking powers rightly vested in elected officials. Justice Roberts should keep in mind that even though judges can cause problems by entangling themselves in tricky public policy issues, courts cannot stand by without ruling against something clearly unconstitutional without committing a different kind of sin – one that is more the equivalent of judicial inactivism. \nJustice Antonin Scalia’s argument proved the most disappointing. The man wrote about our “war with radical Islamists” and the potential of the decision to cost American lives as though he had already prejudged the case. \nPerhaps McCain was the real disappointment. By trying to frame this Supreme Court decision as an excess of judicial activism, he is simply pandering. \nHe has recently suggested that he would appoint judges who would have decided as Roberts did. I can’t say I would look forward to that.