Boumediene v. Bush

For what it's worth, here's the Supreme Court's controversial decision from today that reaffirmed the habeus corpus rights of the prisoners at Guantanamo Bay. As you might expect, it's dry stuff, apart from Justice Scalia's raging, blatantly partisan dissent. That itself is worth reading to get a sense of the Bushite mind near the end of its tether. I confess myself unqualified to judge the constitutional niceties. I also admit that it doesn't immediately make sense to me how the American right to habeus corpus can be applied to foreigners captured on a battlefield. To my knowledge, it's never been asserted as a natural and hence universally applicable right. At best, it derives from English common law, which I don't understand to be universal in scope. But I recall Philip Bobbit writing in his otherwise diabolical tome Terror and Consent that the main object of the Constitution is to constrain government action, so in that case someone's specific entitlement to protection may count for less than the government's obligation not to do certain things.

I can only argue from hearsay, and I've seen too many stories about the dubious circumstances through which people have ended up in Guantanamo to trust the military's claim that everyone there has already been determined by prior tribunals to be terrorists or enemy aliens. Yet Scalia constantly refers to the plaintiffs and those they represent in exactly those terms. To him it's beyond dispute that they are indeed enemy aliens and terrorists; the very point in dispute he takes as already proven, and he essentially ascribes any disagreement with his view to bad faith or judicial arrogance. He demands deference to the military, especially to the Commander-in-Chief, and to Congress, at least when it enacts measures of which he as a conservative ideologue approves, such as the Military Commissions Act. Finally, he raves hysterically that the Court will live to regret this day, since Americans will certainly die because of this decision. This is called being a sore loser, and it retroactively helps justify the decision in my mind.

Let's face it: if, as Scalia reminds us, we are at war, and we catch terrorists red-handed on "the battlefield," loosely defined, we shouldn't trouble ourselves with dragging them into the Cuban oubliette. When people are brought there and called terrorists, they've probably been nabbed on something less than red-handed evidence, and we have a right to ask under what circumstances they've been captured. Lest anyone question our patriotism, ask them: if these prisoners are terrorists, why aren't they dead? If the answer has anything to do with the prisoners' rights, then we can wonder aloud what the fuss is about over the Court's ruling today.