On Thursday June 12, the Supreme Court restored habeas corpus to the accused
persons detained by President Bush at Guantanamo. In doing so it set American
laws again on the track of constitutional self-respect. But it also opened the
grounds for a debate which is sure to be long and fierce, in which the American
opponents of liberty, eager for the domestic regime that in 2002 seemed almost
in their grasp, will spare no reproach against the Court and will speak openly
of the "lack of realism" of the U.S. Constitution.
Two previous decisions, and two bad remedies by a servile Republican Congress
and its Democratic enablers, led to Thursday's decision. The Supreme Court in
Rasul v. Bush, in June 2004, recognized that the Guantanamo prisoners had
statutory habeas rights. The response by Congress was the Detainee Treatment
Act of 2005, which specified the harsher rules to which they were subject. In
Hamdan v. Rumsfeld, in June 2006, the Court held that Guantanamo trials by
military commissions were in violation of both the Uniform Code of Military
Justice and the Geneva Conventions. Congress then offered up, and the president
signed into law in October 2006, the Military Commissions Act, which gave
legislative sanction to the Guantanamo commissions and stripped the prisoners
of habeas corpus.
Now, in Boumediene v. Bush, the Court found the ad hoc Congressional remedy of
the Military Commissions Act to be unconstitutional. Many who nominally voted
for the bill had said early on that they knew it to be unconstitutional. Chief
among these was Senator Arlen Specter, a lawmaker who has spoken as a dissenter
but served as an accomplice to President Bush. The New York Times today backed
the Court's decision, and so will some other papers; but it is well known the
vice president doesn't take no for an answer. He and his lawyers will be back
again to lock the prison doors on those who once couldn't consult lawyers, who
still can't see much of the evidence against them, and who in many cases were
never charged with a crime.
Yet Boumediene v. Bush has made the work of sophistry more tasking to the gulag
apologists for Guantanamo, that prison-without-a-country where they threw away
the rules and thought up reasons afterward. Thursday's decision, in substance,
overturned the legislative assumption that the Military Commissions Act could
deny habeas corpus actions pending at the time of the law's enactment. And by
the reasoning of Justice Kennedy's majority opinion, the Court has now placed
Guantanamo under the eyes of federal courts whose burden is to act within the
Constitution.
Justice Kennedy quoted the statement by Hamilton in Federalist 84, that, along
with crimes created after the fact, "arbitrary imprisonments have been, in all
ages, the favorite and most formidable instruments of tyranny." He followed
Hamilton in quoting Blackstone on the confiscation of property without
accusation or trial, and Blackstone on an offense he considered worse:
"confinement of the person, by secretly hurrying him to gaol, where his
sufferings are unknown or forgotten." Such arbitrary imprisonments without
explanation and without appeal, Blackstone said, are a still "more dangerous
engine of arbitrary government" than confiscations. The most appropriate
remedy, for both Hamilton and Blackstone, was the habeas corpus act.
Justice Souter, in concurrence, ended his opinion with these memorable and
somber words: "After six years of sustained executive detentions in Guantanamo,
subject to habeas jurisdiction but without any actual habeas scrutiny, today's
decision is no judicial victory, but an act of perseverance in trying to make
habeas review, and the obligation of the courts to provide it, mean something
of value both to prisoners and to the Nation."
For supporters of the idea of endless war and the aggrandizement of the national
security state, Guantanamo has always been a necessary monument and a salutary
menace. It is the symbol of the war party and they guard it with a solicitous
care that borders on pride of possession. But what explains the conditional
defense of Guantanamo by those, like the Secretary of Defense, who affect to
deplore its necessity yet say that it cannot be closed?
Part of the answer appeared in a story by William Glaberson in the New York
Times on Friday June 13. "Some 80 detainees," writes Glaberson, "cannot be
charged with war crimes, perhaps because the evidence is not strong enough, but
are nonetheless considered too dangerous to release." Glaberson adds (with too
much credulity and too little explanation) that there are supporters of the
prison who believe the Court's decision gives "unrealistic protections for men
captured during war." Yet some of those men were innocent. Many, in the first
big sweep in Afghanistan, were turned in by neighbors because they had bounties
on their heads. Others have names that sound like the names of somebody we might
have been searching for, but, to be sure, you had to know the language. We were
not sure and six years later they are at Guantanamo.
Justice Scalia's dissenting opinion leads with an op-ed formulation: "America is
at war with radical Islamists." In plenty of mainstream outlets, you would find
columnists to agree, but what exactly is the authority of the statement,
coming, as it does, from a justice of the Supreme Court? The Scalia opinion
begins with a presidential opinion that has no legal standing. The U.S. is, in
fact, at war in Iraq, where our enemies are various, and in Afghanistan, where
our enemies are the Taliban lately enlarged and invigorated by allies created
by the fury against American acts of destruction. Justice Scalia could have
pleased as many of the audience whom he wished to please had he said, "America
is at war with Islamo-Fascists." Or he might have said: fanatical Muslims. Or
have called it a "clash of civilizations." He could, with as much propriety,
have said we are at war with Terror. That would have included all the present
enemies at a sweep, along with all imaginable future enemies. The harder you
fall for names that are vague and dark, the faster you can lower the standard
of justice.
His astonishing opinion goes on to assert that the Court's decision "will almost
certainly cause more Americans to be killed." And it concludes with a prophecy
that is half a prayer: "The Nation will live to regret what the Court has done
today." Notice the depth of the non-moral and non-judicial presumption of these
statements. The Court, Justice Scalia is saying, exists to serve the pragmatic
hopes and fears of the nation. It does not exist to mark the character and the
limits of the law, which define the identity of the nation. If that is right,
there is nothing wrong in his giving recent figures of American deaths in Iraq
and Afghanistan as reasons why the Court's decision is mistaken. "Last week, 13
of our countrymen in arms were killed." And yet this was a patent play to the
gallery. It comes to the crass debater's topic of "giving aid and comfort to
the enemy," a tactic raised to the level of judicial demagogy.
Here is a fair wager. The Americans who have died in Afghanistan and Iraq did
not think they were fighting to defend an authoritarian state with no limit on
the forces operating the law. Yet Justice Scalia is troubled that Thursday's
decision in favor of constitutional liberty will set "military commanders" the
"impossible task of proving to a civilian court...that evidence supports the
confinement of each and every enemy prisoner." He writes as if the concept of
innocence were a luxury reserved for pleasant people in happy times. That the
prisoners are rightly identified, that they are indeed correctly described as
enemies: this is the very thing to be proved. And you cannot prove it without
evidence. And the evidence isn't good if only the accuser can see it, or if it
was altered in transit, or if it was extracted under torture.
Those, away from the battles, who have made the largest personal sacrifice for
liberty today, are the army lawyers for Guantanamo inmates, and the civilian
lawyers who have tried to assure that these cases would not disappear. Lt. Col.
Stephen Abraham, in particular, informed the public of the corruption of the
legal process after he saw summaries of evidence against detainees, which had
been performed inside Guantanamo by unqualified people--indeed, people who are
likely to have been chosen for their lack of qualification. Abraham found the
same pattern in the vetting of the information supplied by government agencies.
He was a witness--as others have been, though few as yet have testified--to one
of the signal accomplishments of the Cheney-Bush administration, the gutting of
the civil service and the foreign service and the purge of government agencies.
"I suggest," wrote Felix Frankfurter in a letter to a patriot a good deal like
Justice Scalia, "that you consider what law really means. Anybody can give law
to his friends. It's the essence of law to give it to our enemies." Frankfurter
wrote those words at a time of national panic around the Sacco and Vanzetti
trial; but they reveal a principle he kept in mind when he served on the
Supreme Court, from 1939 to 1962. The law, he summed up, is "all we have
standing between us and the tyranny of mere will and the cruelty of unbridled,
undisciplined feeling." It remains the same unbridled feeling whatever enemy it
designates and whatever Heimat or homeland it clutches as its present excuse.