Boumediene Part Two: Who do ya trust?

The Supreme Court held that the writ of habeas corpus applies to all the Gitmo detainees, as they are being imprisoned in territory under sovereign American control. Justices Kennedy and Scalia quibble over the meaning of sovereignty—Cuba technically “owns” the place but the U.S. practically “is the unanswerable boss of it”—but the real issue is this: who do you trust? The executive says, “trust us, Lakhdar Boumediene and his pals are wild-eyed terrorists who want to kill Americans.” Congress says, “we trust the executive to make these determinations, mostly because we’re political cowards.” The Court says, “fuck y’all, we trust ourselves.”

Scalia’s dissent is mostly spittle and spite, but his strongest argument against the decision is his invocation of the political process. In Hamdan v. Rumsfeld (2004), both Breyer and Kennedy claimed that the habeas-less military trials erected by the Bush administration were unconstitutional because they lacked express Congressional approval. Boumediene challenged, and overturned, the law Congress then passed to authorize the tribunals. The Court is playing one-on-two here: overturning an interpretation of the Constitution and a system for trying alleged terrorists that was explicitly supported by the only two branches of government that represent the voice of the electorate. [Note: whether or not you agree with Boumediene is probably a function of how you view the word "alleged" in the previous sentence.]

But that’s the point. Every power system needs a failsafe, a loophole, an escape hatch—especially democracies. The politics of Boumediene will focus on the war on terror, the ruling’s implications for Osama bin Laden (if captured, would he have habeas?), and Scalia’s gift to the McCain campaign: “it will almost certainly cause more Americans to be killed.” McCain seems to be banking on the idea the footsoldiers of the right will be galvanized by the ‘activist’ Court into enflaming their tepid support for his candidacy. Sure, they might. But the great middle that McCain has set his sights on seems to support giving at least habeas rights to the Gitmo detainees, and won’t be drawn to his candidacy merely because the most-respected branch of government decided to extend the basic protection of American law to a bunch of prisoners in Cuba. Whoever they trust to decide what to do with the Gitmo crowd, it sure ain't the Bush Administration.

This divide between the center and the right, and McCain’s schizophrenic attempts to court both, probably explains his initial responses:

“It obviously concerns me . . . but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantanamo Bay and I still think that we ought to do that.”

And the next day, after having apparently gotten the memo:

"The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country.”

You know who to trust.