Scales of justice tip to individual liberty over national security

Khalid Sheikh Mohammed
REUTERS/sketch by Janet Hamlin
Khalid Sheikh Mohammed, accused al Qaeda mastermind in the 9/11 attacks, stands at a hearing in a U.S. military war crimes court at Guantanamo Bay.

By the standards of the rest of the world, Thursday’s Supreme Court decision on the Guantanamo detainees makes the United States more than extraordinary. Not many nations value the principle of liberty so dearly that they grant constitutional privileges to their most dangerous enemies. That’s one way to look at it.

The other way is to see the court, at least in this case, as an unwitting and naïve collaborator with international terrorists whose aim is to murder Americans and destroy American liberty.

That’s the way President Bush interprets the court’s historic granting to foreign prisoners held at Guantanamo the constitutional right to challenge their detention in U.S. courts. “I strongly agree with those [justices] who dissented,” he said. “The dissent was based upon those serious concerns about U.S. national security.”

Indeed, the court’s decision spoke to the delicate balance between national security and individual liberty. At its heart was the principle of habeas corpus — the right of those held to confront their accusers on the issue of their detention. That right, under prevailing law, cannot be suspended except in the case of invasion or rebellion — neither of which took place on Sept. 11, 2001, the court held. The habeas right applies not only to Americans citizens on U.S. soil, but also to foreign nationals held on land controlled by the U.S. Guantanamo is a naval base on the southeastern tip of Cuba that the U.S. has held since 1903.
Justice Anthony Kennedy emerged as the swing vote in the pivotal 5-4 ruling. “The laws and Constitution are designed to survive and remain in force in extraordinary times,” he wrote, alluding to 9/11.

Noting that some prisoners have been held without due process for six years, he added, “The costs of delay can no longer be borne by those held in custody.”

While some critics took the court’s ruling as an intrusion into the executive’s authority on national security, the court apparently sees habeas corpus as an instrument to safeguard individual freedom against arbitrary state action. It is, Kennedy wrote, “an indispensable mechanism for monitoring the separation of powers.”

Not surprisingly, Justice Antonin Scalia issued the strongest dissent, pointing out that the U.S. is “at war with radical Islamists” and predicting that the ruling “will almost certainly cause more Americans to get killed.” He added this warning: “The nation will live to regret what the court has done today.”

The presidential candidates had differing reactions.

The candidates weigh in
Republican John McCain called the prisoners “unlawful combatants” and referred to Chief Justice John Roberts’ dissenting comments about the prisoners already enjoying “a generous set of procedural protections.”

Democrat Barack Obama called the decision “a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo” and “an important step toward re-establishing our credibility as a nation committed to the rule of law.”

Although both candidates favor closing the prison, the issue may work its way into the campaign. One man or the other will have to decide what to do with the 270 inmates. The ruling brings turmoil to the process that Bush pushed through Congress in 2006 for trying terror suspects by military tribunal. “This is a case about how the policy of the war on terrorism is shifting as a political issue,” Faiz Shakir, research director for the think tank Center for American Progress, told Reuters.

Conservatives would like Congress to again try to write a constitutional detainee policy. But current congressional leaders support the court’s action. No new steps are expected until a new president and a new Congress are seated.

One intriguing aspect was how the court’s action was described in various quarters, at home and abroad. said the ruling “won’t close the prison down, but it’s a step toward curbing Bush’s unilateral tactics.” ran this headline: “Top U.S. court deals Bush blow.”

The American Legion’s national commander, Marty Conatser, said: “To suggest that foreign terrorists, who have never set foot in this country and respect no civilized laws should enjoy the same rights under our Constitution as U.S. citizens must make America’s founding fathers turn over in their graves.”

Aljazeera, the top Middle Eastern news outlet, quoted its senior Washington correspondent as explaining that “Guantanamo was chosen because it was not on American soil and therefore would be beyond the reach of the American justice system.” The decision “was a victory for the proper system of justice,” the network said.

Rush Limbaugh, told his radio audience that the prisoners “are going to lawyer up, and they’re going to have plenty of ACLU-type lawyers defending them on the content, in the sense that they’re not enemy combatants, and then the judge decides. And if the judge says, ‘You know what, we think you’re right, Sahib. You’re not an enemy combatant,’ then he has to be released, and the U.S. government has got to release the guy. That’s what happens here.”

An editorial in Investor’s Business Daily began: “In a historic first, the right to habeas corpus has been bestowed upon prisoners of war — in wartime.”

Washington Post blogger Dan Froomkin, in a piece titled ‘The Education of George Bush,” began: “President Bush’s slow and painful schooling in constitutional law continued today as the Supreme Court ruled for the third time in four years that he had violated a basic precept of the American legal system.”

Amnesty International’s Dalia Hashad said: “It’s a real shame that in the 21st century we’ve taken such a step backward in the Bush administration to say we have the right to throw someone in jail and throw away the key — but no longer.”

The American Bar Association’s president, William Neukom, declared: “Today’s ruling reaffirms the vision of our founders, and helps restore the credibility of the United States as a leading advocate and model for the rule of law across the globe.”

Shayana Kadidal wrote this in the Huffington Post: “Of the roughly 770 men held [since the prison opened] over 500 have been released; under 20 have been charged. The military says it will only charge up to 80 with offenses to be tried by military commission. That leaves almost 200 men who the government has no intention of every charging; without today’s decision they might have remained in detention forever. without ever having a real chance to argue for their release before an impartial court.”

Steve Berg, a former Washington, D.C., bureau reporter, national correspondent and editorial writer for the Star Tribune, reports on urban design, transportation and national politics. He can be reached at sberg [at] minnpost [dot] com.

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Comments (1)

  1. Submitted by Bernice Vetsch on 06/13/2008 - 12:29 pm.

    “Not many nations value the principle of liberty so dearly that they grant constitutional privileges to their most dangerous enemies. That’s one way to look at it.”

    I think perhaps you meant to say “constitutional privileges to THOSE SUSPECTED OF BEING their most dangerous enemies.”

    The paranoid vision of the creators of the War on Terror has led the US to arrest, jail-forever-without-charge, whisk away to secret prisons in other countries, authorize and/or conduct torture on suspects who have turned out to be innocent of any crime. It surprises (but delights) me that five members of the Court have come down on the side of the Constitution.

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