A Short Note On The United States Supreme Court Decision On The Guantanamo Prisoners

Commentary

By a 5-4 vote, during the week of June 6, 2008, the United States Supreme Court has held that when the courts are open (in short, when martial law is not a factor) the bedraggled prisoners being held in the American 'prisoner of war' camp in Guantanamo are entitled to access to the federal courts to seek redress of grievance. Of course, as always this decision will have to be fleshed out in real cases but the Justice Kennedy-authored decision, he of swing vote fame, as least gives defense lawyers a chance to argue someplace other than a rigged military tribunal in the future.

Do militant leftists see this as an important decision? A victory even? Well, yes we will take our victories, large or small, anyway we can get them today. Look, the import for us is this. The details of cases fighting for democratic rights, or in this case just basic democratic decency, like the details in criminal cases do not always make for pretty reading. Islamic fundamentalists, indiscriminate suicide bombers and the like, if that is what they have down in Guantanamo (rather than some guys that they indiscriminately scooped up along the way which appears to be true in at least some of the cases), are not out friends. In the end we will be crossing our own swords with these guys. Today, however, the fight for their basic democratic rights to a hearing denied so long by the Bush Administration and this same Supreme Court in previous cases is our fight. If they can disappear these guys that nobody really likes what happens when we get ‘uppity’? That too would not be pretty reading as witnessed by the “red scare” roundups of our predecessors after World War I and World War II.

As a last point the other interesting thing about this decision is the minority position led by one Justice Antonin Scalia and his little cabal of upfront, in-your-face reactionaries. Scalia, in particular, went out of his way to demonstrate once again why as a general rule we place no faith in the courts (basically when Kennedy votes the other way with the four serious Neanderthals). Scalia and his cohorts on the bench and outside in the Federalist Society are all hard-core original intent theorists. This means that the world, and here they mean the constitutional world, stopped about 1791 (at the latest). Thus, drawing and quartering, public hangings, even the occasional governmental agent kicking down the door and such do not offend their sensibilities. Here is the really scary part though- remember we have actually had over two hundred years of human evolution and understandings about the nature of law and society. If these august justices are scandalized today by allowing access to the courts to foreigners (and that is what this is really all about) then can you image their political positions then- God Save the King, I assume. No, Antonin Scalia and his boys are no James Madisons.