June 13, 2008


Scalia's fear factor: His dissent in a key terror case makes it harder to solve the Gitmo problem. (David Kaye, June 13, 2008, LA Times)

The decision infuriated Scalia. It "will make the war harder on us," he asserted in dissent. "It will almost certainly cause more Americans to be killed."

Scalia's overheated rhetoric harms a critical national decision that must be made about what to do next with the detainees. Be afraid! he says. And know whom to blame when the next terrorist attack comes! It's exactly this kind of demagoguery, designed to limit debate, that got us where we are today, with the Congress adopting a detainee law based on fear rather than effective policy and American principles

The sad truth is that Guantanamo has been an epic failure. For more than six years, hundreds of individuals have been held there, some on the flimsiest of evidence and some undoubtedly dangerous, devoted terrorists. Fewer than 300 remain today. None has been tried by the military tribunals set up by Bush in 2001 and ratified by Congress in 2006. Hundreds have been released to their home countries after an opaque process in which the military determined that they "no longer" pose a threat. Some have returned to battle.

...on what basis can Mr. Kaye say it won't potentially lead to more Americans being killed?

Posted by Orrin Judd at June 13, 2008 4:09 PM

"The sad truth is that Guantanamo has been an epic failure. For more than six years, hundreds of individuals have been held there, some on the flimsiest of evidence and some undoubtedly dangerous, devoted terrorists." And "Some have returned to battle."

So the answer is to release them all. This man is an idiot.

Posted by: Mikey at June 13, 2008 4:42 PM

Beside the relatively minimal intelligence value, Guantanamó was designed and intended as a humane alternative to the procedure specified by the Geneva Conventions: shoot 'em on the spot, after hurried or no investigations. Now that that is no longer permissible without the full panoply of "due process", which cannot be complied with under battle conditions, we simply revert to the older and darker system.

Of greater importance: the decision essentially says that captives must be treated according to American law. Since subjecting captives to the law of their captors was what the Geneva Conventions were specifically designed to prevent, the decision makes the Conventions a dead letter. That may not have entirely good consequences.


Posted by: Ric Locke at June 13, 2008 5:09 PM

The leftists never understand why our prisons are filled to the rim DESPITE the decrease in crimes. They don't understand cause and effect. Cause: more criminals are caught and kept in jails, effect: less crimes. Their cause: less crimes, effect: prisons are filled. Thus, they are confused.

More in Gitmo, less jihadists on the street, less chance of terrorist killing Americans. The leftists: no terrorist attacking Americans, why jihadists in Gitmo?

Posted by: ic at June 13, 2008 5:18 PM

You want the truth? The country couldn't handle the truth.

The truth is that war criminals, caught fighting out of uniform or equivalent, guilty of perfidy, misuse of protected signs, abuse of protected persons, and all the other crimes of the spiritual jailhouse, should have been sent to justice by the first GCMCA--General Court Martial Convening Authority--who took them into custody.

We can all see what has happened here. No one would decide, so at the end, indecision became itself the decision.

The factual distinctions between this dog-and-pony show and Quirin, Yamashita and Eisentrager could not be plainer. In each of those cases, there had been a LoW proceeding and a LoW determination prior to the civilian courts considering whether their intervention were appropriate.

We are going to have to study the opinions to assess the damage done to national defense. Still, don't blame the Court for this travesty. blame those who essayed to fight the jailhouse without rectifying the names.

Posted by: Lou Gots at June 13, 2008 5:40 PM

Scalia's opening to his dissent:

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war. THE CHIEF JUSTICE’s dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows. My problem with today’s opinion is more fundamental still: The writ of habeas corpus does not, and never has,run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this
military matter is entirely ultra vires.


Posted by: Benny at June 13, 2008 6:16 PM


If we intended to try anyone, it would not have taken 6+ years. The lack of process was a feature, not a bug.

The prisoners were there for intelligence purposes only. No one in the Administration cares if any, except a few big shots, are tried or even held.

Posted by: Bob at June 14, 2008 2:40 PM

For most 'journalists', when a released detainee kills again, that too is a feature, not a bug.

And even more so if the victims are Americans.

Posted by: ratbert at June 14, 2008 9:52 PM