The dissenting Justices in last week's landmark ruling on the constitutional rights of detainees at Guantanamo condemned the decision as unprecedented judicial activism, and in a sense, it was. Never before has the Supreme Court declared unconstitutional joint action of the President and Congress on a military matter during wartime. Never before had the Court extended the constitutional writ of habeas corpus - the right to challenge one's detention in court -- to foreigners held abroad as enemy fighters. Never before had the Court extended any constitutional protection at all to foreigners outside our borders ostensibly fighting against us. The Court's bottom line in Boumediene v. Bush insists upon a central role for courts in one of the most important issues in the "war on terror" - who can be detained and for how long.
But in another sense, the Court's decision was not unprecedented. The Court's decision fits comfortably into a growing trend in liberal democracies across the globe. Courts in the United States and elsewhere have historically taken a very deferential approach to the actions of political branches on matters of national security. But in recent years, courts around the world have increasingly exercised their authority to oversee and limit those actions - often on behalf of foreigners accused of terrorism.
In Great Britain, for example, the Law Lords, the equivalent of our Supreme Court, have since 9/11 issued three decisions rejecting counterterrorism measures. They declared invalid a law authorizing indefinite preventive detention of foreign terror suspects; barred any consideration of evidence obtained by torture, even when British authorities played no part in the torture; and barred the use of secret evidence in procedures employed to justify imposing curfews on terror suspects.
In 2007, Canada's Supreme Court ruled that the use of secret evidence to detain foreign nationals suspected of terrorist activities was unconstitutional. And just last month, the Court unanimously ordered the Canadian government to disclose to Omar Khadr, a Canadian held at Guantanamo, evidence that Canadian authorities had obtained from him when they interviewed him there.
Israel's Supreme Court has barred the use of coercive interrogation tactics against Palestinian terror suspects, forbade detention of Palestinians as "bargaining chips" to seek the release of Israeli hostages, and restricted when the military may seek to kill suspected terrorist leaders. And Germany's highest court has twice in the last two years ruled that computer "data mining" measures designed to identify terrorists violate privacy rights.
The U.S. Supreme Court's latest decision may be novel from the standpoint of U.S. history, but it is fully consistent with this worldwide trend. The development reflects a growing recognition of the essential role that courts play in checking the excesses of democracy. Democracies are good at many things. But they are not good at protecting the rights of unpopular minorities, particularly during crises. For that we need courts, and the rule of law, not Guantanamo, and "law-free zones."
Ironically, the recognition of the importance of judicial review in a liberal democracy is itself an American export. The tradition of judicial review, in which unelected courts have the power to declare the actions of the political branches unconstitutional, was borne in the United States, with Chief Justice John Marshall's historic 1803 decision in Marbury v. Madison. But on issues of national security, our courts have traditionally failed to fulfill the obligation of independent review that Marshall set forth. Courts around the world have nonetheless grown to embrace the message, and increasingly have applied it to stand up to claims of national security. The Supreme Court's decision in Boumediene inches the United States closer to the views of the rest of the world, and restores the notion of judicial responsibility first articulated by Chief Justice Marshall in 1803.
David Cole is a professor at Georgetown University Law Center and author of Justice at War: The Men and Ideas That Shaped America's War on Terror, published this month by New York Review Books.