In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.
If he wrote this himself, that's really puzzling. If one of his clerks put it in, he should be sacked because it was the Bush administration not the courts who released those 30 prisoners.
This is the third "devastating setback" to the Bush administration's war on terror, so I don't see too much cause to be optimistic that this will really deter crazy executive branches in the future; although, to be sure, this sets a good precedent that the United States can't indefinitely detain prisoners without habeas simply because they are being held outside of the country.
But, Scalia....really, I expect a lot better from him.
4 comments:
I don't think Scalia's point there was so much that it was wrong to release those people (though he might think that), but, as he says "These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection." [emphasis his]
He's trying to support the idea that we need like, I don't know, a million years to figure out who the bad guys really are, and that even someone as smart as "the military" can make mistakes. So that the court has no hope of getting it right. Or something.
He's definitely way off, but I think a couple of analysts who I've read have slightly misunderstood this point. Though I could be wrong.
It's not really up to the court to get it right, though. I mean, I understand we're on the same page with regards to disagreeing with him about the constitutionality of granting habeas rights to non-citizens being held on a foreign base over which we have sovereignty - but my larger point is that Scalia's ruling is hysterical.
To whose analysis are you referring? Not saying I'd disagree, just curious.
"It's not really up to the court to get it right, though."
Well, since they now have the right of habeas corpus, it will indeed be up to the courts.
"...but my larger point is that Scalia's ruling is hysterical."
Which I don't disagree with. But I do think you were misrepresenting his argument. He never even implied that the courts released those prisoners.
I can't find the example of other analysts saying what you said, so maybe I'm just have deja-vu... I'll keep looking, though it's like searching for a needle in a haystack.
I also think it's a little unfair of Lithwick to say " So you see, even those who were deemed innocent at Guantanamo are actually guilty in Scalia's mind." I don't think that was Scalia's point, or that he would even agree to this. I think it kind of veers off into straw-man territory.
To clarify my last point a bit, Scalia may think some of those found innocent, are in fact guilty, but not necessarily all. Also, Lithwick says "Just to recap, then, everyone at Guantanamo is guilty..." which is, again, an overstatement of Scalia's position.
At least I think.
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