Legal Commentary

This morning brings the long-awaited Supreme Court opinion on the availability of habeas corpus to the foreign detainees being held at Guantanamo Bay.  Though the result was probably predictable ever since the Court abruptly changed its mind and granted the case last year, it still tingles the senses to read a bold, liberty-affirming opinion from Justice Kennedy issued over the sharp (and, in one case, bombastic) dissents of four of his colleagues.

The opinions are dense--and like all the other war-on-terror opinions--will take years to fully digest.  For now, I want to broach one question raised by today's opinion:  if, as all the Justices seem to either agree or assume, the detainees are entitled to some sort of serious yet limited procedure to test their confinement, why all the posturing and screaming?  Put differently, why does the writ of habeas corpus scare the conservative Justices so much?

I'm curious what other people have to say, but my initial speculation is that answer is more cultural and political than legal.  It seems to me that, in ways that would have been hard to predict, the battle over the availability of the ancient writ has become the touchstone in a debate about who we are as a people and how we should respond to acts of unspeakable barbarity.

Many in the current administration took 9-11 as a signal that our traditional ways of dealing with security threats and criminal atrocities were insufficient for the complex threat posed by modern terrorism.   In the new post-9-11 era, our most basic institutional settlements, legal rules, and norms of behavior were back on the table, subject either to renegotiation or unilateral executive abandonment. Those who took the contrary view were labeled as naive and politically vilified. 

The major war-on-terror cases to have reached the Supreme Court have all raised different legal issues, but they have all shared a striking thematic similarity:  in each case, the Court has rejected the claim that the post-9-11 world is a legal tabula rasa.  Instead, the Court has consistently held that preexisting treaties, statutes, and Constitutional understandings continue to govern.

In that context, it is not surprising that the legal battles have increasingly focused on the availability of habeas corpus.  In no small measure, the question whether individuals detained as suspected terrorists may pursue relief through the ancient writ or must instead rely upon new streamlined procedures drawn up in the throws of the current criss has come to stand in for the broader question of whether we must fundamentally change who we are as a society to respond to the threat of terrorism.

While others might find it foolish, I find the Court's course in these cases noble.  Having said that, I totally understand why today's decision riles the blood of Justice Scalia (and embitters his less hotblooded colleagues on the right).  While legally the decision will probably have limited consequences, culturally and politically it is a stinging rebuke to the Bush Administration's view of the post-9-11 world.