SCOTUS: What part of "no" doesn't Dubya understand, Part Trois

For the third time in four years, the US Supreme Court has ruled that the detainees at Guantanamo Bay, Cuba -- the so-called "enemy combatants" -- do have rights. Significantly, the court upheld the right to seek habeas corpus in the civilian federal court system. It should be no surprise that this decision was made albeit by a narrow margin, 5-4. What is surprising in Boumediene v Bush (Case 06-1195) is the level of exasperation shown by the normally dour and conservative court.

Significantly Justice Anthony Kennedy on behalf of the majority wrote that the US government's claim that Guantanamo Bay is not part of the United States is as specious as the claim that Scotland is not part of the United Kingdom for the purposes of the Magna Carta -- or for that matter, Imperial India during the Raj. Furthermore, as Kennedy points out, if Guantanamo is part of Cuba then it follows that the detainees should naturally be able to seek redress in the Cuban courts but they're being denied even that privilege -- denied, by the United States.

In other words, the US Constitution is extended extraterritorial jurisdiction outside the US to wherever the US effectively has controlling jurisdiction. These includes embassies and consulates as well as military bases set up overseas and her ships at sea. The issue was also settled when it came to the question of whether the Constitution applied to territories it acquired at war including the Philippines (a US territory until just after World War II) as well as Guam and Puerto Rico (which remain territories to this day). To the US claim that a 1950 SCOTUS decision regarding war crimes in Germany, that the detainees there could not use habeas corpus, was dispositive of the issue, Kennedy replied in part that because the tribunals were multi-national it was unclear which country had jurisdiction; but there's no issue of who is in charge de facto in Gitmo.

It is of course, the right decision. But as Justice Souter pointed out in his concurrence, there is also an important issue that many of the detainees have been held without charge for over six years. This impinges on the right to a speedy trial. In a normal war, it may make sense to detain someone somewhat longer than normal, in part to ensure the accused's safety. But in an undeclared war such as the so-called war on terrorism, it has been largely the Bush administration that has set the terms of what constitutes the war. There is no doubt that al Qaeda attacked America and that was an act of war in its own right. However, where no nation has made the first strike (terrorists, after all, have no nation) one has to wonder who has the right to decide when the war has ended. Under the Bush rules, it will never end and therefore the accused -- presumed guilty until proven innocent contrary to habeas corpus -- should be held indefinitely.

Is America a dictatorship of one, or does the balance of powers mean anything? Put it another way: Does anyone wonder how it's possible Vatican City can be an absolute dictatorship when it promotes democracy in Europe (outside the walls of the Holy See) and elsewhere? The only permanent residents there are the Swiss Guard and a few others and even they don't get to vote on whoever gets to be the day-to-day Governor of the compound even if it is from a list of Cardinals.

Who polices the police, in other words? Bush says, no one. Uh-uh. It must be the courts, and the courts will not tolerate nor should it tolerate any attempts to have its jurisdiction circumscribed, no matter what Congress or the President has to say about it. That's as it should be. If Bush disagrees with that, tough luck -- but he said he "respects" the decision. Whatever respect means these days. Pretty much the same as what love meant to Prince Charles when he was married to Princess Diana.

Gitmo was a flawed process from day one. If the government believes it has the right people, then show the evidence and put the accused on trial -- whether that's in a civilian court or a court martial is beside the point; but a military commission where the outcome is predetermined is not the way, and certainly not consistent with habeas corpus. If Bush has any decency left in him, he can save some grace and move the prisoners to Fort Leavenworth or another military stockade; with trials to begin in 90 days or less.

As for the dissenters' claims that some detainees released have gone on to commit other atrocities, that is true in one case; but the counterpoint is, what if Gitmo is creating terrorists where none existed before? Moreover Americans insist upon basic consular rights when they are arrested or detained in other countries, in particular the right to be treated as nationals in the country they are visiting or working in would be. Americans owe the same courtesy to their guests, no matter how gross the crime may be.

Six years is more than enough to gather evidence; in fact it's so long that it's enough to attach jeopardy and produce a default verdict of not guilty.. After all, OJ Simpson gave the district attorney in Los Angeles 60 days when he was indicted in a preliminary hearing, and the LAPD had no issue with that. Some of the detainees at Gitmo are being held on minor immigration violations, no more -- and it's just plain stupid that they are being held to a different standard than Mexicans or Canadians who cross the border at an unauthorized point.

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