Supreme Court to Bush: Clean Up Your Act!

By Matthew Rothschild

With the Supreme Court’s Guantánamo decision on Thursday, the Bush Administration was put on notice: Their dirty way of doing things has got to stop.
At Guantánamo, the Supreme Court prohibited Rumsfeld from holding military trials without Congressional authorization and, beyond that, with substandard due process. Rumsfeld’s tribunals were allowing in hearsay and even coerced testimony.

The Court said no to all that.

But the Court’s decision goes way beyond the gates of Guantánamo.

For it now casts into doubt a whole range of reprehensible practices that this Administration has been engaging in.

This includes mistreating and torturing detainees: the hooding, the dangling, the painful shackling, the exposure to high heat and freezing temperatures, the beatings, the waterboarding, and the homicides of more than two dozen detainees at the hands of U.S. personnel.

This includes the transfer of detainees to countries that practice torture.

This includes the CIA’s secret prisons, where hundreds of detainees are being kept, without access to any court, reportedly for the rest of their lives.None of that’s kosher, implied Justice John Paul Stevens in his majority opinion (proving once again the wisdom of Will Durst’s quip that the most important person in the country right now is Stevens’s doctor). (Full disclosure: Stevens is a former law partner and still good friend of my father’s.)Stevens cited Common Article 3 of the Geneva Conventions as a governing authority. That article says detainees should “in all circumstances be treated humanely.”

It bans “outrages upon personal dignity, in particular, humiliating and degrading treatment.”

And it talks about “judicial guarantees which are recognized as indispensable by civilized peoples.”

Those are just the guarantees that Bush, Cheney, and Rumsfeld have been violating.

And those are just the outrages that Bush, Cheney, and Rumsfeld have been countenancing.

The question is whether Bush, Cheney, and Rumsfeld will obey the Court or whether they will directly flout it. This latter course of action is unlikely, though the legal claim the Administration has been asserting—that the judiciary has no authority to interfere with the exercise of the President’s commander in chief powers—suggests that this may have crossed their minds.

More likely, the Administration will drag its feet, as it did after the Rasul decision, the 2004 ruling that allowed Guantánamo detainees to challenge their detention. And Bush will probably look to Republicans in Congress to give him approval for tribunals and more.

But for now, three cheers for the Supreme Court.

Three cheers for Justice William Kennedy, who is now the swing vote on the Court, and this time swung the right way.

And three cheers for Justice John Paul Stevens, still going strong at eighty-six.