Cultural Revolutions

Guantanamo Supreme

Do suspected Al Qaeda terrorists captured in Afghanistan and taken to the U.S.-operated prison at our naval base at Guantanamo Bay, Cuba, have a right guaranteed by the U.S. Constitution to contest their detention in the U.S. civilian courts?  According to five members of the U.S. Supreme Court, who agreed with an opinion by Justice Anthony Kennedy in the case of Boumediene v. Bush, decided on June 12, the answer is yes.  John McCain, the presumptive Republican nominee for president, declared that this was “one of the worst decisions in the history of this country.”  Associate Justice Antonin Scalia, dissenting in the case (joined by Justices Thomas, Roberts, and Alito), declared that there was absolutely no legal authority to support the result reached by the majority and that the decision “will almost certainly cause more Americans to be killed.”  Barack Obama, the presumptive nominee of the Democratic Party, praised the decision and declared it “a rejection of the Bush administration’s attempt to create a legal black hole at Guantanamo.”  “This is an important step,” said Obama, “toward re-establishing our credibility as a nation committed to the rule of law.”

Who got it right?  The closest constitutional-law precedent was Johnson v. Eisentrager (1950), in which the Supreme Court had held that German prisoners of war,...

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