The future of the infamous Guantánamo detention centre was thrown into doubt yesterday after the US supreme court delivered the most serious blow yet to President George Bush’s policy of holding prisoners indefinitely without trial.
The justices, in a historic ruling, said the 270 prisoners, held for more than six years for alleged links with al-Qaida and the Taliban, have a constitutional right to take their cases to civilian courts on the US mainland.
Lawyers for the prisoners yesterday hailed the ruling as a vindication of their battle to have Guantánamo, in Cuba, closed…
- We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness…
… The dissenting opinions, one by Chief Justice John G. Roberts Jr. and the other by Justice Scalia, were vigorous. Each signed the other’s, and the other two dissenters, Justices Clarence Thomas and Samuel A. Alito Jr., signed both. Chief Justice Roberts, writing in more mild tones than Justice Scalia’s more apocalyptic dissent, said the decision represented “overreaching” that was “particularly egregious” and left the court open to “charges of judicial activism.” The decision, he said, “is not really about the detainees at all, but about control of federal policy regarding enemy combatants.” The public would “lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges,” he added …
- He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
- He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries…
- He has affected to render the Military independent of and superior to the Civil power.
- He has combined with others to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation…
- For depriving us, in many cases, of the benefits of Trial by Jury:
- For transporting us beyond Seas to be tried for pretended offences:
… as it should have been from the start. In their dissent, Bush’s Four Horsemen of the Apocolypse don’t seem to feel that justice should be blind. They sound more like policy wonks. It’s the opposite of judicial activism to administer justice independent of considerations like "lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges". This case is about the life and lives of human beings, not American foreign policy…
When I first read the reports of this decision, and the dissents, while happy for the majority ruling and Justice Kennedy’s asserting himself as the “swing vote” of reason, the most alarming and distressing thing about it was the language of the dissents. Although Scalia’s apocolyptic screed is not surprising, given his penchant for the extreme, I was particularly concerned by his statement that the majority decision would “certainly” lead to more Americans being killed. This type of inflammatory rhetoric simply has no place in a legal opinion, and certainly sounds more like a political speech. But even more concerning was Chief Justice Roberts’ using the words “judicial activism” in his dissent. This is only a political rallying cry from the far right, and shows just how far he will go in politicizing the Supreme Court. No thoughtful jurist would ever use this term–it’s the exclusive creation of the political hacks (or as I was wont to say when I was practicing law “A judicial activist is just a judge who ruled against you.”), and it is a sad dumbing down of legal scholarship for him to use this language–he could have disagreed with the majority decision without intentionally setting up a rallying cry for the red meat wingnuts. Unfortunately this is no surprise either–when I was at Lambda Legal I was on a team tasked with reading his and Alito’s reported decisions and prepare an analysis for the legal department to use in deciding whether to publicly oppose these appointments. From what I read, I was convinced that both Roberts and Alito flat out lied during their confirmation testimony, and were only too eager to get on the Court so they could further the political agenda. Wish we had been wrong, but sadly we now have too many years of this in our future.