Tie goes to the runner

The question is, who is the runner?

The Supreme Court heard oral arguments yesterday on the level of due process that should be afforded to the Guantanamo Bay detainees. Reportedly, this was one of the most memorable oral arguments in recent memory.

It looks like this is going to be another 5-4 decision, and by all accounts I've read, Kennedy looks to be the swing vote.

According to the article linked above, Justice Scalia seems to think that because there is not one case directly on point for granting habeas to foreigners being held by the U.S. on foreign soil, then the detainees should not be granted habeas. He could be right, but, as Seth Waxman, arguing for the detainees pointed out, that might not matter, as the Court ruled in Rasul v. Bush that Guantanamo Bay is essentially U.S. soil.


These detainees have been held for 6 years without the right to challenge their detention and without charges being brought.

Arguing for the state was Paul Clement, who noted that with the new review process, which can go as far as the U.S. Court of Appeals for DC, each detainee is entitled to a personal representative during a status review process. But Justice Souter pointed out that this representative is required to report anything negative about the individual back to the military - which does not encourage the individual to share, particularly on ambiguous items.

Waxman pointed to the insufficiency of this review process. He discussed a German named Kornaz who was freed from Guantanamo becaue 1. he had a lawyer (not guaranteed by the current appeals process), and 2. he was able to get information about the charges against him, which he was then able to prove was false.

I can't believe that the person had to dig to learn what charges were being levied against him while he was being held by our Government. How would he have raised even a reasonable doubt argument, let alone innocence, if he never even knew the charges against him? Is "necessity" such an obstacle that we have to let innocent men sit in a prison on an island thousands of miles from their home for an indefinite time - because we are at war with an idea? These men, even the innocent ones, are looking at an indefinite detention (basically a prison sentence without a release date) until we win the war on "terror," which cannot be won until there is no more terror, which is impossible to determine, because there is no way to adequately define terror or a terrorist. As I've heard said on more than one occasion, "One man's terrorist is another man's freedom fighter." It's wrong, completely wrong, to hold individuals until the end of one person's (Bush), or nation's (the United States) interpretation of a word arrives.

But from a legal standpoint, which I think the detainees should win, I'm not sure Kennedy has been convinced.