Wednesday, February 2

Supreme Chickens

Last June, the U.S. Supreme Court supposedly resolved the question of detainee rights for the hundreds of so-called "enemy combatants" warehoused at Guantanamo Bay, Cuba. In its 6-to-3 opinion in Rasul v. Bush, the court established conclusively that federal courts have jurisdiction to hear habeas corpus petitions from these prisoners in some fashion or other. But beyond that, Rasul probably raised more new questions than it answered. And it's becoming clear that litigating each word of every clause in every one of those questions may consume some of these prisoners' natural born lifetimes.

And it's more than easy to blame the Justice Department, which sees Rasul, and the other seminal war-on-terror case, Hamdi v. Rumsfeld, through the sophisticated legal prism known as the Toddler Worldview: Anything one doesn't wish to accept simply isn't true.

But while we are laying blame here, it may be worth considering that the Supreme Court bears the most responsibility for not getting Rasul right—or at least clear—the first time. The opaque John Paul Stevens opinion, coupled with Anthony Kennedy's concurrence (which at least implies that military tribunals might provide sufficient due process for these prisoners), are ambiguous enough to allow the government and judiciary to play the kinds of semantic chutes and ladders it now plays. And the court's refusal to grant certiorari in a subsequent terror case has compounded the problem. No one opposes judicial restraint or minimalism; judges should decide only the matters directly before them. But when the highest court in the land only half decides a matter squarely before it—when it decides that prisoners languishing for years in detention have certain inalienable-rights-to-be-named-later, it's tantamount to having decided nothing at all.