Supreme Court ruling on Gitmo Detainees

A few days ago the Supreme Court ruled that detainees in Guantanamo Bay have the right to challenge their detentions in US civilian courts.

I am not wild about this decision because I believe that it will result in some frivolous legal proceedings, and could result in the release of true terrorists. Nevertheless, I believe it is the correct decision for a variety of reasons (all with the usual caveats that I'm not a lawyer):

• We have two legal frameworks under which our government operates: criminal and military. We’ve survived 230 years with these two, and have never had any real problem with putting people under one jurisdiction or the other. I do not see why this system suddenly needs to break down. The detainees are either prisoners of war (whether they are subject to Geneva convention protection is debatable), or they are criminals. Bush is trying to have it both ways: treating this as a military war in every single respect but for one, namely what we call the enemies that we capture. If it walks like a duck and quacks like a duck…
• Many people have made the argument that because the detainees are not US citizens that they do not have constitutional rights. This is a bad argument: the rights guaranteed in the constitution have never been limited to citizens. Rather, those rights are limitations on what our government can do, how it can treat people, so it applies to official acts of the government even extra-territorially. Again, that’s a criminal statement which is probably void if in a military context, but Bush seems to be arguing against the latter despite all evidence to the contrary. The fact that terrorists don’t wear uniforms and target civilians may exempt them from Geneva conventions, but it doesn’t make their actions any less “military,” especially if that’s what we respond with.
• Consider the case if the decision had gone the other way. Suppose I firebomb a house. I’m guilty of arson (and probably a few other crimes), but I’m afforded various legal protections before I can be sent to jail for that. If the decision had gone the other way, then if Bush decided that my act was not mere arson but “terrorism”, then according to their logic, they could declare me an unlawful combatant or terrorist and lock me up indefinitely. And there’s nothing I could do about it. This isn't just a hypothetical, this is exactly what they did with Jose Padilla, who was a US citizen detained on American soil. The fact that the president is an honorable person who wouldn’t frivolously do this is immaterial – it’s not a power that our constitution grants, and the framers of our constitution were deliberately (and justifiably) wary of granting unchecked powers to any position and simply trusting that it wouldn't be abused.
• Another argument in favor of holding the detainees is the historical precedent of holding prisoners of war without any rights to challenge their holding until the end of hostilities. The problem here is that while it is a war in just about every sense of the word, it also is not at all a war because there is no central unified enemy: we’re fighting a bunch of independent ideologues. Yes, some band together to form one group or another (Al Queda, the Taliban, Hamas, Hizbullah, Al Queda in Iraq), but that’s the point: even if you get rid of Bin Laden, Al Queda doesn’t go away or cease hostilities. To the degree that individuals or small autonomous groups are acting on their own, there is no peace treaty, the very notion of “end of hostilities” makes no sense. So we should admit what this is: we're holding people that we suspect are dangerous. This may seem to contradict my earlier assertion that this is truly military, but it actually supports the idea that these guys are either prisoners of war or criminals, or even some blend of the two, but just because they don't fall neatly into one or the other doesn't mean that they fall in some in-between world that is neither.
• One of the core principles of America is that we do not punish innocent people. While we can be sure that many Gitmo inmates are in fact bad, bad, bad, we also know of quite a number of people who were basically innocent of terrorism, who were in the wrong place at the wrong time or who committed the “terrorism” of driving a car for Bin Laden (for example). As a nation we should find the idea of delaying indefinitely a determination of guilt or innocence abhorrent and reprehensible.
• I’m sure the detainees are dangerous. So are murderers. And we occasionally have to release a murderer because they’ve served their time or because we couldn’t prove their guilt. And our society has accepted this imperfection as the price of being a just society. But most of the time, if we’re worried about that criminal, we’re able to demonstrate to the court that they are indeed a continued threat and are able to keep them detained. Why do we think we wouldn’t be able to do that if someone challenged their detention? In other words, if we think that giving them Habeas Corpus somehow will lead to a lot of them being freed, then it seems to me that we’re holding them on far flimsier evidence than we should be. Conversely, if we really have good reason to think they’re as dangerous as we’ve been saying they are, then heck – “bring it on.” Let them challenge their detentions, show the judge (secretly, if necessary) why we think they’re baddies, and watch how quickly the courts affirm that they are indeed a threat and can remain locked up. Frankly, I don't have a problem with military commissions (including the less protective rules of evidence) as opposed to civilian courts because I don't think these are ordinary criminals, nor do I think that ordinary jurisdiction applies. But we do need to have some sort of legal process here.
  

In short, I think that the biggest problem with the way that we are holding these detainees is that we are making it up as we go along. (Indeed, the Seattle Times had a story on just this topic today.) Our nation is built upon a framework of laws and checks and balances precisely to avoid this sort of legal improvisation. There have indeed been times when we have had to work outside of that framework, but in the past presidents have explicitly suspended habeas corpus; our current president has decided not to do this, and this to me means that he is trying to have it both ways.