If we get another set of judges like the ones who signed onto Justice Kennedy's majority opinion in Boumediene v. Bush last week, we may not even get the chance to worry about those things.
And that's because the five justices who held that the Guantanamo detainees are entitled to a full rainbow of constitutional rights, including habeas corpus, have taken it on themselves to strip the executive and Congress of the right to determine foreign policy and, more important, national security.
In other words, five unelected lawyers have figured out a way to trump both civil and military authorities by treating the separation of powers as a whimsical idea and not the bedrock of our constitutional democracy.
The detention center at Guantanamo, which can't be considered sovereign U.S. territory, situated as it is on the island of Cuba, has been housing enemy combatants since late 2001. Since they're outside the U.S., it's been the administration's position that the detainees weren't entitled to habeas, which is limited to persons in-country. Of course, to civil libertarians and Bush-haters (try to find a distinction), this is just quibbling over irrelevant details.
To them, even people who pose the most serious threat to our nation are entitled to take advantage of our constitutional protections no matter where they happen to be passing time. And if this increases the odds that they can destroy us, well, quibble, quibble.
On two occasions, the Bush administration and Congress tried to compromise with the more liberal members of the court by passing legislation that would provide the detainees with some limited procedural rights, just not the whole shebang demanded by the guys in the orange suits. But it refused to extend habeas to the enemy combatants, allowing them to present their cases in a civil court when the more appropriate venue was a military tribunal.
It's not uncommon for constitutional rights to be suspended, even denied, during wartime. Lincoln suspended habeas during the Civil War, to the outrage of his opponents. Roosevelt interned Japanese, German and Italian citizens living within our borders during World War II, and evoked the same criticism. To this day, there are people who call these initiatives cruel and un-American.
But it would be interesting to see what might have happened if either president had yielded to the civil libertarians of their day and disregarded the exceptional threats posed to our country in a time of war.
As law professor Jack Goldsmith was quoted as saying in the most recent issue of Commentary magazine, "[Lincoln] believed that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the Constitution, through the preservation of the nation."
Sadly, the five-man oligarchy in Washington decided otherwise. In holding that the Guantanamo detainees were entitled to civil review of their claims, Justices Kennedy, Souter, Ginsburg, Stevens and Breyer put their narrow concept of justice before the more immediate concerns of all American citizens, i.e., to be protected from a compelling enemy threat.
And those who say the government hasn't proven that the Guantanamo detainees are truly a threat, like our esteemed Sen. Specter, should remember that one of the most recent suicide bombers was a guest at Guantanamo until his release in 2003.
Or perhaps they should read Justice Scalia, yet again the voice of reason in the chaos, who writes in dissent that "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."
John McCain, no stranger to war, agrees with Scalia. Barack Obama hails Kennedy's decision as "an important step toward reestablishing our credibility as a nation committed to the rule of law."
It's the Supreme Court, Stupid.*
Christine M. Flowers is a lawyer.