On Thursday, June 12, 2008, the Supreme Court of the United States ruled (5 to 4) that, contrary to the Bush Administration's assertions, the detainees being held at Guantanamo Bay have a constitutional right to go to federal court to challenge their continued detention.
The decision was a historic rebuff to the Bush Administration's practice of denying Guantanamo prisoners the right of habeas corpus -- the constitutionally guaranteed right of anyone being held by the government to go before a judge and challenge his or her confinement.
This decision was a perfect example of the Constitution's checks and balances at work. The Court based its decision on a basic constitutional question, and overruled practices preferred by the Bush Administration and approved by a Republican-controlled Congress in 2006.
The narrowly split decision (five justices voting for it, four against) was typical of important decisions emerging from the current Court, which is ideologically divided. The media's analysis of the decision was also typical of what one finds after the Court issues an opinion on a controversial issue. In this case, compare the way the New York Times (a liberal newspaper) covered the story with the way the Wall Street Journal (a conservative newspaper) covered the story. For even sharper contrast, compare the editorials on the subject by the two newspapers; here's the one in the NYT. and here's the one from the WSJ.
Republican presidential nominee John McCain called the decision "one of the worst [Supreme Court] decisions in the history of this country." Only time will tell on that. In any case, what are some of the worst decisions in the history of the country? One journalist, responding to McCain's statement, came up with this list:
1. Dred Scott v. Sandford (1857): Case overturning the Missouri Compromise, and thereby precipitating the Civil War, which (to paraphrase Scalia's dissent yesterday) "almost certainly cause[d] more Americans to be killed" than would have happened otherwise. Declared a slave despite having been brought through free soil by his master, Scott was returned as property to his master's widow, who married an abolitionist running for office. Embarrassed, the abolitionist returned Scott to his previous slaveowners, who set him free nine months before his death - a luckier man than the five Guantánamo detainees who've died in custody. Holding that blacks "had no rights which the white man was bound to respect," the Court found Scott was not a "citizen" of the United States within the meaning of the federal Constitution. (Bonus worst-decision-ever points: the Court misspelled the name "Sanford" in the opinion.)
Lesson not learned: All people are people - and have human rights. In a recent case asking for money damages for torture and religious abuse at Gitmo--guards shaving the plaintiffs' beards and heads, deliberately interrupting during prayer time, kicking detainees' Korans, and, in one instance, throwing a copy in a toilet bucket--the court had to decide whether such religious abuse violated a law saying "government shall not ... burden a person's exercise of religion." Two judges agreed that, surely, Congress did not intend the word "person" to include nonresident noncitizens like the men at Guantánamo. Echoing Dred Scott, this interpretive turn was too much for the sole African-American judge on the panel, Janice Rogers Brown, who in a separate opinion wrote that the majority's reading of Congress' will was "at odds with [the statutory text's] plain meaning," adding "[t]here is little mystery that a 'person' is an individual human being ... as distinguished from an animal or a thing." Is that really so hard to figure out?
2. Korematsu v. United States (1944): Case upholding the exclusion of all persons of Japanese ancestry from Pacific Coast states during World War II. 110,000 loyal Japanese-Americans (70,000 of them citizens) are eventually moved into squalid internment camps as a result. Mass profiling takes place despite fact that there is no real evidence that anyone from community is involved in espionage or is conspiring to damage war effort. (Bonus worst-decision-ever points: memos justifying exclusion orders were written by future bleeding-heart-liberal Supreme Court Chief Justice Earl Warren.)
Lesson not learned: Profiling doesn't work. It wastes resources on following prejudices instead of focusing on threats that are real. In the real world, law enforcement works by getting tips and leads from members of the community. Profiling alienates the very communities the profiler believes are essential to help track down his suspects, the same communities the profiler wants to serve as his eyes and ears. Principle applies whether it's Japanese-Americans or, say, foreigners in Afghanistan in October 2001 being profiled into detention at Guantánamo.
3. Plessy v. Ferguson (1896): Case upholding racial segregation of railroad cars. Established "separate but equal" principle that became the legal foundation for the apartheid system in the deep south. (Bonus worst-decision-ever points: future Chief Justice Rehnquist said in a memo as a law clerk: "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson was right and should be reaffirmed. ... To the argument... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.")
Lesson not learned: a majority may not deprive a minority of its constitutional rights, even when the majority are U.S. citizens and the minority are aliens held at a permanently-leased military base in Cuba.
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