By Eugene Robinson
WASHINGTON—It shouldn’t be necessary for the Supreme Court to tell the president that he can’t have individuals taken into custody, spirited to a remote prison camp and held indefinitely, with no legal right to argue that they’ve been unjustly imprisoned—not even on grounds of mistaken identity. But the president in question, sigh, is George W. Bush, who has taken a chainsaw to the rule of law with the same manic gusto he displays in clearing brush at his Texas ranch.
So Thursday, for the third and apparently final time, the high court made clear that the Decider has no authority to trash the foundational principles of American jurisprudence. In ruling 5 to 4 that foreigners held at Guantanamo Bay have the right to challenge their detention in federal court, the court cited the Constitution and the centuries-old concept of habeas corpus. Justice Anthony Kennedy’s majority opinion seems broad enough and definitive enough to end the Kafkaesque farce at Guantanamo once and for all.
“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Kennedy wrote. Again, it’s amazing that any president of the United States would need to have such a basic concept spelled out for him.
That reference to “extraordinary times” takes care of a specious argument that Bush and his legal minions have consistently tried to make—that when the nation is at war, as it has been since the 9/11 attacks, the president has extraordinary powers that allow him to do, well, basically anything he wants.
The Bush administration also has argued that the Guantanamo prisoners are “enemy combatants” who have no legal rights; that while U.S. citizens detained in the “war on terror” may have some rights, foreigners do not; and that Guantanamo is foreign soil, beyond the reach of U.S. judges. The court had no trouble seeing through all this smoke.
Twice before, the court has ordered Bush to respect the rule of law. In 2006, after the second ruling in favor of Guantanamo inmates’ rights, the administration convinced Congress to pass a law stripping the inmates of any right to file habeas corpus petitions in the federal courts. Thursday’s ruling struck down this law—and since the decision was based on the Constitution, it seemed to eliminate the possibility of new legislation that would let Bush continue his program of arbitrary, indefinite detention without judicial review.
The court also deemed inadequate the kangaroo-court tribunals that are held for Guantanamo inmates in lieu of proper court hearings. In the tribunals, an inmate is allowed to have a “personal representative” but not an actual defense lawyer—and the inmate has no right to see the evidence against him or confront his accusers. Is it conceivable that the evidence against certain inmates might consist of witness statements that were obtained through the use of interrogation techniques involving painful coercion that international agreements classify as torture? Amazingly, that scenario is highly conceivable. Amazingly, it’s also highly conceivable—even probable—that some of the estimated 270 inmates at Guantanamo, imprisoned for as long as six years, are innocent of any involvement in terrorism and just happened to be in the wrong place at the wrong time.
I say amazingly because it’s still hard for me to believe that arbitrary arrest, indefinite detention and torture continue to be debated, as if there were pros and cons. The Supreme Court has now made clear that while justice and honor may be mere inconveniences for George W. Bush, they remain essential components of our national identity.
“The nation will live to regret what the court has done today,” Justice Antonin Scalia wrote in a dissent, warning that the ruling “will almost certainly cause more Americans to be killed.”
Everyone hopes he’s wrong, of course. But if the only thing that mattered was security, why would we bother to have an independent judiciary at all? Why would there be any constitutional or legal guarantees of due process for anyone? We could just lock up anyone who fit the demographic profile of the average armed robber, say, or anyone with psychological traits often displayed by embezzlers.
The Guantanamo decision will create headaches for the federal courts. The process of granting hearings to the detainees will be messy, imperfect and at times frustrating. I’m confident that in the end, the system will work. George W. Bush may not trust America’s basic values and highest ideals, but I do.
Eugene Robinson’s e-mail address is eugenerobinson(at)washpost.com.
© 2008, Washington Post Writers Group