It is virtually axiomatic that when people are terrorized by an enemy, self-defense is justified. No reasonable person doubts the force of this axiom. The problem, of course, is whether leaders of the terrorized are the best judges of fashioning proportional responses. Are they entitled, that is, to up the stakes and terrorize the terrorists? Fair play you say? Not under a constitutional democracy committed to human rights. The Bush-Cheney administration has sought, as other dictatorial regimes have done, to institute policies like water-boarding, not so much to obtain information, although that is always the stated purpose of dictators, but rather to terrorize those suspected of being terrorists. One additional feature of such reactive terrorism is to ignore the rights of detainees by, for example, denying the writ of habeas. This writ is the basis of any civilized society; it is certainly the basis of any civilized society paying even lip service to libertarianism. Yet, Bush-Cheney has no interest in civilization. Rather, they want to prevail no matter what the consequences. Yesterday, however, Bush-Cheney did not prevail. The court said no to current administration’s draconian practices of detention.
Intead, “[i]n a stinging rebuke to President Bush’s anti-terror policies, a deeply divided Supreme Court ruled Thursday that foreign detainees held for years at Guantanamo Bay in Cuba have the right to appeal to U.S. civilian courts to challenge their indefinite imprisonment without charges. . . . Bush said he strongly disagreed with the decision – the third time the court has repudiated him on the detainees – and suggested he might seek yet another law to keep terror suspects locked up at the prison camp, even as his presidency winds down. . . . Justice Anthony Kennedy, writing for the 5-4 high court majority, acknowledged the terrorism threat the U.S. faces – the administration’s justification for the detentions – but he declared, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” . . . In a blistering dissent, Justice Antonin Scalia said the decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.” . . . Bush has argued the detentions are needed to protect the nation in a time of unprecedented threats from al-Qaida and other foreign terrorist groups. The president, in Rome, said Thursday, “It was a deeply divided court, and I strongly agree with those who dissented.” He said he would consider whether to seek new laws in light of the ruling “so we can safely say to the American people, ‘We’re doing everything we can to protect you.’” . . . Kennedy said federal judges could ultimately order some detainees to be released, but he also said such orders would depend on security concerns and other circumstances. The ruling itself won’t result in any immediate releases. . . . The decision also cast doubt on the future of the military war crimes trials that 19 detainees, including Khalid Sheikh Mohammed and four other alleged Sept. 11 plotters, are facing so far. The Pentagon has said it plans to try as many as 80 men held at Guantanamo. . . . Lawyers for detainees differed over whether the ruling, unlike the first two, would lead to prompt hearings for those who have not been charged. Roughly 270 men remain at the prison at the U.S. naval base in Cuba. Most are classed as enemy combatants and held on suspicion of terrorism or links to al-Qaida and the Taliban.” To read further click here.
This does not mean Gitmo detainees will be freed. It simply means that have a preliminary day in court. If you believe that even Hitler or the Devil should be treated fairly, you will rejoice at this decision, not because you believe in the possibility of Hitler or the Devil’s innocence, but rather because you are committed to the noble ideas of American constitutionalism.