Boumediene "Worst Decision"?

Last Thursday, the Supreme Court announced its decision in Boumediene v. Bush, which allows detainees at the U.S. Naval Air Station at Guantanamo Bay to have access to federal courts in order to challenge the legality of their detentions. On Friday morning, speaking at a "town-hall style" meeting in New Jersey, presumptive Republican presidential nominee John McCain referred to the decision as “one of the worst decisions in the history of this country.” That is ridiculous hyperbole even from a conservative Republican point of view.

Let's put the decision in perspective:

• The decision affects only about 280 people held at Guantanamo Bay. The majority opinion clearly states that the military base at Guantanamo Bay is unique because it is not, technically speaking, part of the United States, and yet it is under the complete control of the United States. The decision will never be applied to detainees held in prisons in Iraq or Afghanistan.
  

• The decision does not set anyone free. The decision only allows them access to federal courts for purposes of challenging the legality of their detentions. If the Bush administration can demonstrate to the courts that the detentions are legal under U.S. law or international law, then the detentions will continue.
  

From the point of view of a conservative, the Boumediene decision has got to be small potatoes compared to decisions like Roe v. Wade, which has lead to the deaths of innocent fetuses by abortion, or Miranda v. Arizona, which required that warnings be given before police can interrogate suspects and which has resulted in thousands of admittedly guilty criminals going free, or even Lawrence v. Kansas, which gave homosexuality some constitutional protection.

So why the hyperbole? In the grand scheme of things, why should a conservative care whether or not a handful of detainees have been granted access to federal courts?

Two possible reasons:

1. It's better to be on offense than defense. McCain is going to have a difficult time defending the record of the Bush administration (and McCain's voting record) on domestic and foreign policy issues, so it's better to be on the attack against the decisions of the Supreme Court than trying to defend the decisions of the Bush administration and the Republican party over the last 7 years.
2. The fear game. What has won elections for Republicans over the last several decades is fear. Fear of desegregated schools (i.e., blacks and liberal judges), fear of crime (i.e, blacks and liberal judges), fear of affirmative action (i.e., blacks and liberal judges), fear of loss of jobs (i.e., Hispanics and blacks and liberal judges), fear of gay marriage (i.e., fear of homosexuals and liberal judges), and fear of terrorism (i.e., fear of Arabs and blacks). Attacking the Supreme Court as "soft on terrorism" effectively combines the most important elements of almost every traditional conservative fear, because it combines traditional white xenophobia with traditional conservative antipathy to the court system.

Look for more of "the fear game" as the McCain campaign continues.

The Power of Darkness

In an earlier posting ("Guantanamo and Legal Ethics"), I commented on the efforts of a Pentagon official, Charles D. Stimson, to limit the legal representation of the prisoners at Guantamo Bay by attempting to intimidate their lawyers. (I only recently learned that, as a result of the uproar over Stimnson's remarks, he resigned on February 2. And, according to an Associated Press story on the same day, the Bar Association of San Francisco asked the California State Bar to investigate whether Stimson violated legal ethics in his remarks.)

Now, the Bush administration is making a more direct assault on the lawyers, but seeking a court order limiting their access to their clients, both in their meetings with their clients and in their written communications with their clients (which will be read and censored).

This action appears to be the result of the wave of appeals now being filed in the DC Circuit by detainees. So far this year, there have been 14 appeals filed from "Combatant Status Review Tribunals," all of which have been filed since mid-March. There have also been 8 habeas corpus petitions filed, all since the beginning of February.

According to a story in today's New York Times, the filings by the administration include an affidavit from a Navy lawyer at Guantanamo, Cmdr. Patrick M. McCarthy, who alleged that lawyers for the detainees have been providing the detainees with information about events outside of the Guantánamo Bay military base, such as a speech at an Amnesty International conference and information about more recent terrorist attacks. The affidavit states that "Such information threatens the security of the camp, as it could incite violence among the detainees."

Exactly why or how such information could "incite violence" is not explained, but the obvious explanation is that the information gives the detainees hope.

Hope is what leads people to rebel. If you can hope to be free, then you can continue to struggle against your captors. But if you have no hope of ever being free, or ever being allowed to communicate with your family again, and there is no possible life other than eating and sleeping in isolation in a concrete cell, then there is no hope, and perhaps no reason to live.

And that is the goal of the Bush administration. They don't want merely to imprison the bodies of the detainees; they want to crush their spirits, and the way to crush their spirits is to keep them in darkness.