Supreme Court Says Guantanamo Inmates Can See a Judge

On a 5-4 decision in Boumediene v. Bush, the Supreme Court of the United States ruled yesterday that the “illegal enemy combatants” being held by the US military at Guantanamo Bay, Cuba, have the right to challenge their detention before a US federal judge. This doesn’t mean that the detainees get to go free; that will be decided by District Court judges. Nor does it mean that the president doesn’t have the right to detain these people. It does mean that the 700-year-old right of habeas corpus still applies in the US.

This is the third time that the Supreme Court has ruled in favor of the detainees. On the two previous occasions, the Congress altered the law to render the ruling moot. Since the Democrats control Congress now, the law won't be changed. Still, with only a few more months before Mr. Bush leaves office (221 more days), there is little reason to presume that the executive will cooperate. Getting the cases into US District Court will take time, and the federal attorneys will have instructions to drag their feet and draw this out until after Inauguration Day.

Justice Anthony Kennedy, writing for the court, 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 they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.” The most recent act dealing with the detainees limited their access to federal courts and substituted a military tribunal. The court decided that this was an unconstitutional suspension of habeas corpus. Under Article I Section 9 of the Constitution, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” There is no rebellion nor invasion at hand.

In dissent, Chief Justice John Roberts called the decision “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” Justice Scalia claimed the US is “at war with radical Islamists” (pray, where is the Declaration of War?), and this decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.” That may be true (there is an absence of evidence), but surely Americans are willing to die to protect freedom and human rights -- or what is the point of fighting the terrorists at all?

This whole nonsense could have been avoided had the administration simply declared these captives prisoners of war. Since the war in Afghanistan continues, they can be held under the Geneva Conventions for the duration. The dimwits in the Bush White House, though, decided to act tough and come up with this non-status of “illegal enemy combatants” and then tried to fit the law to suit their policy. What’s particularly scary is four justices agree with them.

© Copyright 2008 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Fedora Linux.

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