But the government has not proven a single case against any of the Guantanamo detainees and thus it is inaccurate to refer to them as terrorists. In all fairness, the Pentagon has identified and released several Gitmo prisoners it believed did not pose a threat to the United States. A few of these cleared Gitmo alumni went on to terrorist careers - clearly, it's not easy to tell good guys from bad guys without a trial.
The Boumediene decision certainly does not "grant terrorists" - or would be terrorists - "the same privileges as a U.S. citizen." The decision reasserts rights the detainees already have. The court ruled that the Military Tribunals established under the Detainee Treatment Act has failed in its duty to establish a path whereby "terrorists" can simply challenge the grounds for their detention.
This is not solely an American right, this is a fundamental human right established by the Magna Carta. To suggest that any incarcerated person, anywhere in the world, should not have the right to hear and challenge evidence against him is to imagine that there are no wrongful accusations anywhere in the world.
It might come as a surprise to some that the deciding vote in the Boumediene decision was cast by conservative Ronald Reagan appointee Justice Anthony Kennedy. I read the majority opinion and I read Justice Roberts' dissent. It is no great feat to dial up these opinions on the Internet and read them - they both offer clear, differing and often brilliant insights to our Constitution. Roberts' dissent has nothing to do with the detainees right to habeas corpus - he makes a strong claim that allowing the detainees access to civilian courts will simply create the same old problems in a new venue. The Military Tribunals have wrestled with the necessity of protecting national security against the necessity to provide evidence against detainees - now the D.C. Circuit will have to grapple with these issues. This is an intelligent difference of opinion between two conservative judges - not the horror of judicial activism.
Judges make bad decisions, the Supreme Court makes bad decisions. I think Bush versus Gore was one of the most stomach churning, politically motivated decisions in the history of the court. But as Justice Breyer recently pointed out; the truly amazing aspect of Bush versus Gore is the fact that one half the country abided by a Supreme Court decision that it detested. Judges say what the law means, Congress makes laws and the president enforces laws (usually).
The smear of judicial activism is really the cry of the sore loser and an attempt to throw off the essential genius that is the Constitutional system of checks and balances. The judicial branch is amply checked by the fact that judges are appointed and confirmed by the executive and legislative branches. Judges are not beholden to lobbyists or donors and this frustrates some special interest groups accustomed to having their influence felt in all realms.
Demonizing judges for unpopular decisions smacks of desperation and disrespect for the very core of the Constitution. It is not unrelated to the Bush/Rove attempt to improperly load the Justice Department with politically friendly district attorneys. If you don't like the way a decision comes down, make a better case next time. Umpires do make mistakes, but only a poor sport blames them for losing.
*Any female softball ringers are encouraged to contact the writer.
- Citizen Voices blogger Chris McConnell is a bookseller, freelance writer, & former & high school & English teacher & and odd jobber who lives in La Jolla.
