Jan Crawford Greenburg has an excellent commentary on the recent arguments before the Supreme Court concerning the rights of the Guantanamo detainees. She argues that the Court will split along the usual lines, with Stevens, Souter, Bryer, and Ginsburg going for the detainees, and Scalia (the Italian Stallion), Thomas, Roberts, and Alito going for Bush and the U.S. The wild card is Anthony Kennedy. Greenburg thinks he is likely to listen to his conservative inner self. I am inclined to agree, but this is a little like guessing the outcome of the next world series.
I am genuinely conflicted on this one. On the one hand, I have considerable sympathy for the position of Rivkin and Casey, writing in the Wall Street Journal.
The Supreme Court heard a spirited argument yesterday on whether foreign enemies, captured and held overseas, are entitled to the protections of the United States Constitution. Since the founding of our republic, the answer to that question has always been an unequivocal "No."
When the U.S. military is considering the occupation of an enemy fortress, they probably ought not to have to get a search warrant. On the other hand, there is this by
If the rule of law were a religion, habeas corpus would be the first commandment.
The right to have the state justify anyone's incarceration is so fundamental—dating back centuries to the Magna Carta—that in this country it's protected by statute, by the Constitution, and at common law. Today's oral argument in Boumediene v. Bush and Al Odah v. United States is about nothing less than whether the Bush administration's war on terror—endless in its geographic reach and indefinite across time—will become the instrument of the great writ's demise.
Okay, that's a little off the deep end. The whole point of keeping the detainees at Guantanamo is to keep them out of the domestic realm where habeas corpus clearly does apply. But there does seem to be something wrong with keeping these guys indefinitely without charging them with anything. What if one of them is just an innocent caught in the wrong place at the wrong time?
Probably the detainees deserve some greater access to ordinary judicial oversight. But the friends of habeas corpus do their cause no favors by focusing exclusively on the hallowed principles of the rule of law. What happens if the Courts force the release of someone who them goes on to set loose a dirty bomb, or chemical weapon, or a sack of weapons-grade anthrax on some American city? At that point, I submit, the vast majority of folks won't give a rat's ass any more about habeas corpus. They will agree to any measures likely to provide security. If you want to preserve our civil liberties intact, you must make sure that bomb never goes off. Ms.
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