Tom Lasseter's report on innocent people detained by the United States in our war on terror (remember this case?) reminds me of my reaction how Scalia characterized the majority's ruling in Boumediene. He said that the court's ruling, giving detainees Habeas rights against their indefinite detentions, "will make the war harder on us. It will almost certainly cause more Americans to be killed."
He might be right. He might not be -- I'm skeptical there is no trade-off by which our continued flouting of human rights doesn't redound back against us in the form of more violence (when Scalia pointed to several released detainees who engaged in acts of violence against American troops, my response was "well sure -- if they didn't hate America before, they sure as hell do now!"). But he might be right. It is entirely possible that, in the wake of this decision, our jobs will become harder, and more Americans will be killed.
You know what else has that effect? Rights. The fact that the police can't just bomb apartment buildings with suspected criminals inside puts officers at risk. Some, inevitably, will be wounded or killed as a result. Yet, we restrict ourselves anyway. Every right afforded to criminal suspects (a significant concern of our bill of rights) could be cast as putting Americans at risk. The "safe" thing to do would be to shell "bad" neighborhoods into submission and then round up the survivors and place them in internment camps. That would keep Americans alive. It would just be hideously immoral, so we don't do it.
The point is that being a moral human being means that there are some things we can't do, even if they're in our immediate security interests, because they're wrong. In the context of war, certain tactics definitionally cause us to lose the war even if they help an individual battle. When Scalia makes this sort of argument, he betrays a basic misunderstanding of what it means to live in a free society -- in a society that cares about morality, in a society that is constrained by the constitution. "Security" simply does not give us free license to do whatever we want. What Scalia wants is for America to have the liberty to become terrorists. Our founders were wise enough to chart a different course.
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(when Scalia pointed to several released detainees who engaged in acts of violence against American troops, my response was "well sure -- if they didn't hate America before, they sure as hell do now!")
I don't think that's much of a response to the concern that some of the detainees at Guantanamo have acted violently against the U.S. and, if released, would continue to do so. A better point to argue is that many of the detainee releases were done not on an basis of individualized determinations of probably threat, but more on a basis of whether they were citizens of a U.S. ally (e.g. Britain or Kuwait). Scalia points to a recent Washington Post article about a Kuwaiti detainee who then went to Iraq and committed a suicide bombing -- yet neglects the point made in the conclusion by the detainee's former attorney:
Wilner called the suicide bombing a "horrible tragedy" and a result of the absence of appropriate legal processes at Guantanamo. "All we sought for him was a fair hearing, a process, and he was released by the U.S. government without that process," Wilner said.
"The lack of a process leads to problems. It leads to innocent people being held unfairly and not-so-innocent people going home without any hearing. The [U.S.] government decided to release this guy, and why, we'll never know," Wilner added.
No one except an idiot thinks that the detainees should be released wholesale. Surely there are some genuinely dangerous people among them. The problem is that the military got pissy about complaints and seems to have just started releasing people on a diplomatic basis. The detainee had a trial in Kuwait, and unsurprisingly was not convicted there -- what kind of trial are they going to manage, when none of the witnesses or evidence would be in Kuwait? Moreover, this detainee does appear to have been one who was radicalized by his treatment at Gitmo.
Also, in fairness to Scalia, he does want our society to be constrained by the Constitution -- he simply disagrees with the majority's reading of that document. Scalia actually went further than the O'Connor-Rehnquist-Breyer-Kennedy plurality and Souter-Ginsburg concurrence in Hamdi v. Rumsfeld; where they would give Hamdi only limited due process rights to challenge his detention, Scalia declared that unless Congress suspended habeas wholesale, the U.S. citizen Hamdi had a right to a full-blown criminal trial. The difference between Hamdi and Boumedienne, in Scalia's eyes, is that the latter is a foreign national and therefore does not have the full panoply of rights -- indeed, probably not any constitutional rights -- that a U.S. citizen does. Hence the sentence after the one you quote: "It will almost certainly cause more Americans
to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic." (emphasis added)
Scalia is not calling for a wholesale abandonment of Constitutional principles in order to protect our safety. Rather, he is severely cabining who the Constitution protects. Conservatives have long been skeptical of the idea that the Constitution affords rights to foreigners. The little-noted unanimous decision in Munaf v. Geren, which was released the same day as Boumedienne, demonstrates that the Court is united in protecting U.S. citizens' habeas rights against Bush Administration arguments that citizens no longer have those rights if they are being held under American control but outside the U.S. (e.g. in Iraq).
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