I haven’t expressed myself on the Supreme Court’s ruling yesterday in Boumediene v. Bush in which the Court determined that the Bush Administration had acted improperly in denying habeas corpus to detainees at Guantanamo:
WASHINGTON (CNN) — Suspected terrorists and foreign fighters held by the U.S. military at Guantanamo Bay, Cuba, have the right to challenge their detention in federal court, the Supreme Court ruled Thursday.
The decision marks another legal blow to the Bush administration’s war on terrorism policies.
The 5-4 vote reflects the divide over how much legal autonomy the U.S. military should have to prosecute about 270 prisoners, some of whom have been held for more than six years without charges. Fourteen of them are alleged to be top al Qaeda figures.
Writing for the majority, Justice Anthony Kennedy said, “the laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system reconciled within the framework of the law.”
Basically, my view is what it has been all along: I’m willing to let the Court decide. Now the Court has decided and for good or ill we’ll adapt to its decision.
I think that both those who are hailing this decision as a triumph for freedom and those who are gnashing their teeth over a strategic defeat in the War on Terror are overreacting. Historically, some freedoms have always been curtailed in a time of crisis and, at least in the United States, when the crisis has passed they’ve been restored. This decision is just part of that process.
I don’t feel particularly more secure knowing that prisoners are being held indefinitely in Guantanamo.
I’ve always felt that the Bush Administration erred in holding these prisoners in Guantanamo (or anywhere else) but I don’t believe that the Administration acted out of any sort of malice or even arrogance. I think they’ve been holding these prisoners because they don’t know what else to do with them and they don’t want to take the political heat for dealing with them as foreign irregulars taken prisoner in a war zone are customarily treated. I leave aside those prisoners who were taken as a consequence of the bounty the U. S. placed on Al Qaeda members in Afghanistan—another obvious error.
Right now we have a weak executive and a weak Congress, both paralyzed by lack of political courage, and a strong judiciary and federal bureaucracy. Judges have decided that judges should have the final say in the disposition of the prisoners at Guantanamo. However much I might agree with the outcome, that’s why I can’t see this decision as a triumph for freedom but rather as yet another power grab by an oligarchy.
The Supreme Court agreed to hear the case despite the Congress having explicitly denied their jurisdiction to do so, which Congress has (or, at least, had) the power to do. A strong executive or strong Congress might well respond to this decision differently than the president and the Congress undoubtedly will. That may be the greatest lasting legacy of this decision: the unchecked and uncheckable power of the judiciary.
Were I the President, I would certainly make a comment along the lines of “let them enforce it.” And I’d be willing (almost eager) to throw out Marbury v Madison in the process.
Absent that, however, there is a more interesting problem: what do we do on the battlefield? If we take a prisoner, we incur risks and costs to take, transport, house and maintain that prisoner. Those risks and costs have been deemed worthwhile, because we sometimes get useful intelligence, or just a better cultural understanding, from prisoners, and we keep them from fighting us while we hold them. Taking prisoners is less risky than having them fight to the death, because anything that prolongs the fight increases the odds of our troops getting killed, but it the overall process of taking and dealing with prisoners imposes a risk/cost burden higher (according to the military and paramilitary people I’ve spoken with, who put it more bluntly) than letting them fight to the death.
With all that as background, what do you think the odds are that the number of prisoners we take is about to take a nosedive? What do you think the odds are that some of those people we kill whom we would previously have captured will in fact be innocent or reformable, or that more civilians will be caught in the crossfire? Now, what do you think the odds are that the justices will take any responsibility for the increased deaths among our soldiers, our allies, the enemy and innocents caught in the middle?
I don’t think it’s an outright disaster; I just think that it’s a bad decision. The outright disaster part is the Court’s arrogation of the authority to override the Congress’s expressly-granted Constitutional power to strip the Courts of jurisdiction in some cases. (No emanations and penumbras about that power.)
That’s very nearly my reaction, too, Jeff.
If I were the President, I’d be sorely tempted to drop one of the detainees off at Ruth Bader Ginsburg’s home with the observation that since she wanted him, she’d get him.
How about if the political branches pass a law directing all habeas petitions from aliens to the SCOTUS for direct review? If you can’t starve the beast, then feed it more than it can consume. By what authority does the U.S. government deny me split pea soup, Sirs?
I guess my take on the decision is that the system is still working in its own sputtering, half-assed way. If it had been up to me, many of these Gitmo prisoners would have been summarily executed on the battlefield. I have little doubt that Gitmo is holding a lot of dangerous slime balls.
But for moral and practical reasons (noted above) that solution was politcally untenable. Holding them essentially forever without some habeas protection also seems wrong and impractical.
Maybe the best that we can hope for is that a good percentage who are eventually released through the courts will have mended their ways. After all, they’ll be ten years older, fatter, and past their fighting prime. Although I do worry about the courts’ lack of accountability for those who do return to terrorism.
The situation reminds me of one of P.J. O’Rourke’s comments from the 80s about groups like the Guardian Angels in NY. He said that in a truely lawless society, having unarmed vigilantes is suicidal. And in a lawful society, they are unnecessary. Only in America does such a goofy combination make sense.
Something similar may be true here. By all rights, the foreign irregulars should have been shot on the battlefield, and the idea of giving them U.S. constitutional protection is utterly insane.
Maybe the SCOTUS decision is just America’s way of working out conundrums in its own herky-jerk, goofy way.