Denying liberty should scare everyoneIn our society liberty is the norm, and detention without trial is the carefully limited exception.
These words capture a key aspect of American life. But they express an ideal that had become oddly controversial in a nation still sorting itself out after the 9/11 sneak attack. This week, the U.S. Supreme Court reaffirmed our shared belief in freedom and due process under the law.
Eight of the nine justices reached this result in a set of cases originating in the Bush administration's incompetent round-up of suspects abroad. They were thrown behind bars without recourse to courts or any other mechanisms to contest their guilt.
Though the justices used different paths to arrive at the right answer, the result is like the cool breeze that sweeps off the ocean to restore comfort on a sweltering summer day. America remains America after all.
Throughout this litigation, the administration has relied less on law than on brass-plated bluster that virtually any executive branch action should be immune from independent oversight by the courts, or anyone else, during time of war.
The argument was that America is fighting for its very existence and that abnormally harsh measures are appropriate, including locking up suspicious individuals without hope of release to facilitate interrogation.
As the court's majority wrote this week, "Without doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them."
But horrifying as it was to witness the fall of the World Trade Towers, no intelligent person can truthfully assert that keeping prisoners in virtual isolation at the American naval base at Guantanamo Bay, Cuba, can be justified two long, slow years after the event. We are in a wearisome war on the other side of the globe by choice of the president, not in a tooth and tong struggle of any immediate import to national existence.
These prisoners, swept up during our invasion of Afghanistan, may be no more guilty of any conspiracy against the U.S. than were the hundreds of innocent people we've sheepishly released in recent weeks from Abu Ghraib Prison in Iraq.
The administration's chief interest in the Guantanamo prisoners, at this point, is most likely in keeping innocent drudges away from the press until after the election. In prison, they still serve as useful symbols of international terrorism; free, most of them will likely prove at worst to be ignorant low-level functionaries in the feudal-revival kingdom of the Taliban.
The court also dealt with the case of Yaser Esam Hamdi, an American citizen who has been designated an enemy combatant. In his case, the administration argued with a straight face that the court should defer to executive branch under a very deferential "some evidence" standard of evidence.
Administration defenders, many of them good and conscientious people, can't understand why many of us are worried. The Hamdi case, and things like it, are why. Denying liberty to a U.S. citizen and denying access to the courts on the basis of "some evidence" ought to scare every mature adult in this country.
Again, the court split several ways but rejected the administration's contention that it can lock him up and throw away the key simply because it wants to. The court majority's opinion summarizes the opinion of the American people very well: "It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."