Why Boumediene Matters

The recent Supreme Court decision Boumediene has provoked incessant chatter and debate among the legal types, even including a fear-mongering dissent from the "Originalist" (Republican) justice Scalia: The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. He also talks about released detainees "returning to the battlefield". Read here to see the extent of this exageration. I will re-affirm my opinion that lawyers resemble the engineers that I work with in one very important respect: they are semantically brilliant, but functionally stupid. I say this because most of the analysis I have read seems about as morally observant as a mathematical derivation. I will therefore look at this event as a decent human being, instead of as a lawyer. To me, the Constitutional debate is dubious, and not truly necessary. The question that is really being asked is this: If the US Government detains a foreign citizen, what can that foreign citizen do about it? If a US citizen is detained, they can petition for a writ of habeas corpus and have the case reviewed in court. Should this same ability be available to foreign citizens? In trying to answer this question, one must understand how the system is supposed to work. At the outset, a law enforcement agency determines that they have sufficient evidence to arrest a particular individual. At this point, that individual is a suspect. So, let's all get this straight: the people held captive in Guantanamo Bay right now are terror suspects - not terrorists. In order for them to be officially labelled terrorists, there must be a review of the evidence, and a determination as to the guilt or innocence of the accused must be made. We have a name for this process - it is called a trial. In rare cases, Congress can skip this process, but only if they make available a "suitable replacement". Obviously, the Court did not consider Bush's tribunal system suitable. Some heartily approve. Senator McCain? not so much: The United States Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country...And we are going to be bollixed up in a way that is terribly unfortunate, because we need to go ahead and adjudicate these cases. "we need to go ahead and adjudicate these cases"??? So, what the hell is taking so long? Lots of the detainees have been there for 6 years. Obama will undoubtedly be using this as a campaign point. His response is here: This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy. We cannot afford to lose any more valuable time in the fight against terrorism to a dangerously flawed legal approach...Bringing these detainees to justice is too important for us to rely on a flawed system that has failed to convict anyone of a terrorist act since the 9-11 attacks, and compromised our core values. All of this is very nice, but the real reason for the necessity of Bourmediene is only now starting to reveal itself. Revelations like this one are imperative: The Bush administration wants to rewrite the official evidence against Guantanamo Bay detainees, allowing it to shore up its cases before they come under scrutiny by civilian judges for the first time. The government has stood behind the evidence for years. Military review boards relied on it to justify holding hundreds of prisoners indefinitely without charge. Justice Department attorneys said it was thoroughly and fairly reviewed. Now that federal judges are about to review the evidence, however, the government says it needs to make changes. At Guantanamo Bay, the traditional rules of evidence do not apply in trials run by the military. In a Washington federal courtroom, they would...Attorneys for the detainees want judges to review all the evidence and decide whether each prisoner should be released. The government believes the judges should look only at limited evidence prepared by officials at Guantanamo Bay. Remember, these are the "worst of the worst" - according to Cheney. McCain says they are "bad people". Based on what, exactly? Hopefully not the official evidence against them, since the Bush folks now think that it needs to be re-written in the face of judicial scrutiny. We have branded people "terrorists" based on shoddy evidence which will not stand up in court - unless we think this is all just a big coincidence. This is not to suggest that there may not be some actual terrorists in Guantanamo - it is entirely likely, and hopefully a certainty, that some of the people we have been holding are in fact guilty. We know, however, that far more people have been detained than could ever possibly be tried and convicted. The fact that we have not moved to rectify these mistakes - whether intentional or not - by releasing those who we do not intend to prosecute, is a disgrace. We should get to a trial. Why not? Well, there may be reasons that the Bushites don't want this in a civilian court - stuff like this might come up. But, since we don't torture, it should be no problem, right?