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Giving Some Constitutional Rights To Terrorists Is Not Surrender

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The Tampa Tribune

Published: June 18, 2008

Terrorist suspects held in Guantanamo won't be set free to attack America, even though a recent Supreme Court says they have the right to basic judicial review of their imprisonment.

Conservative criticism of the 5-4 ruling gives the impression the more liberal majority is mollycoddling homicidal fanatics and compromising our safety.

The uproar is more about politics than any real belief that President Bush can't fight terrorists unless he has the power to lock up anyone in the world for as long as he pleases, no questions asked.

Remember he originally said he needed the power to treat even U.S. citizens as illegal combatants. Federal courts five years ago correctly refused to go along, and security has not suffered.

Similarly, by now saying that the right of judicial review extends to a select group of detainees long under U.S. control at the U.S.-owned base in Cuba, the courts offer no relief for those held because of incriminating evidence. Nor does it free others held near distant battlefields.

Perhaps a few at Guantanamo are held with little or no presentable evidence. That possibility led Justice Antonin Scalia, on the losing side of the decision, to warn that it "will almost certainly cause more Americans to be killed."

That's an oversimplification, but it was reinforced by Republican Sen. John McCain, who calls it "one of the worst decisions in history."

McCain is implying he would appoint justices like Scalia. But this decision is a reasonable one.

By leaving the detainees so long in legal limbo, President Bush forced the court to choose between two imperfect alternatives: either allow the prisoners to be held indefinitely under military control or grant them some access to civilian courts.

The court erred on the side of individual rights. The underlying issue is habeas corpus, defined by the libertarian Cato Institute as a "fundamental check on the power of government to put people in prison." Libertarian Party spokesman Andrew Davis asks McCain, "What's so wrong with habeas corpus?"

Davis reminds us that high-level calls for executive discretion and fewer individual protections against false imprisonment are "both puzzling and frightening."

The White House and Congress have done a poor job setting the judicial rules for prosecuting the legal side of the war on terror. The public isn't sure where the battlefield ends and how far the military is allowed to intrude into civilian life.

Bush, in criticizing the Supreme Court ruling, said, "We're doing everything we can to protect you."

The nation doesn't want Bush, or the police for that matter, to do everything they can think of. They want the police and military to respect the healthy tension between individual liberty and public safety.

Terrorists have fewer rights than U.S. citizens, but they do have some rights. Granting a possible terrorist a trip to court strengthens the rule of law and certainly is no sure escape from justice.

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