New Process For Detainees Begins Journey Towards Unknown Destination

I am not an attorney, and will never pretend to be. I did go to Law School though, because my wife did while we were married. If you were married when you or your spouse attended law school, you understand what that means. I spent this evening at a party with a crowd of attorneys, I was one of 4 people I met among a sea of suits who was not an attorney, and as you can imagine today's Supreme Court ruling was the topic at the bar... which is where you are guaranteed to find me at these events.

Unless you avoid news, which I imagine most people who read this blog do not, you have probably heard about the Supreme Court decision today regarding the right to Habeas Corpus for individuals detained at Guantánamo Bay. This is the key point on the ruling.

The court declared unconstitutional a provision of the Military Commissions Act of 2006 that, at the administration’s behest, stripped the federal courts of jurisdiction to hear habeas corpus petitions from the detainees seeking to challenge their designation as enemy combatants.

Congress and the administration had passed a shortened alternative to a habeas procedure for the prisoners in the 2005 Detainee Treatment Act. But Justice Anthony M. Kennedy, writing for the majority, said that procedure “falls short of being a constitutionally adequate substitute” because it failed to offer “the fundamental procedural protections of habeas corpus.”

There are a bunch of strong opinions regarding this case, and almost all of those opinions are based on a bias against something, whether political or process. Virtually all of the analysis I have read is partisan, provided from the rather irrelevant perspective to most Americans of what it means for George Bush, John McCain, or Barak Obama. This approach to reporting is pretty silly, who really gives a shit what it means for the careers of a politician, the question is what does it mean for the country. Taking any other perspective highlights a lack of objectivity on this important discussion. This isn't about politics, this is about process.

At the end of the day this ruling is a test of separation of powers. The 2005 Detainee Treatment Act was a law passed by Congress, and signed by the President. The Supreme Court is ruling one small part of this act is unconstitutional, specifically that those detained have the right to know why they are detained and defend themselves of those reasons in a federal court. The right side of politics is claiming this ruling gives too much protection to enemy combatants, while the left is claiming this ruling is, well... it is hard to tell because it is all celebrated as a political victory. I'm not very partisan, and think both sides are overstating the victory and defeat here. This is a victory for process, and the political effects can be left to the pundits.

In my opinion, the Supreme Court has done what needed to be done, start the process for processing detained individuals. Guantánamo Bay has been an unattainable stalemate that has done nothing but delay the necessity to process prisoners effectively and with credibility in the Long War. The ruling isn't a reflection of a major political shift in the country as both political parties claim, rather a rejection of the idea that indefinite detention without process is an acceptable solution. It makes no sense in my world why indefinitely doing nothing was good for America, but that was the political spin of the Administration on this issue. Only in Washington...

The court is using the only means by which it has available to it for processing, using the Federal Court system as the appropriate medium.

The political effect sets up volatile conditions for blow back, the art of unintended consequences, and the blow back politically can go either way and carry with it significant political consequences. The decision shifts the credibility from the politicians (who simply outsourced the problem to the military) to the courts for managing prisoners of war, and spotlights the attention to the credibility of judges for dealing with matters of war. Guantánamo Bay reportedly houses some fairly significant evil folks in their midst. The myth is Americans demand vengeance, but the reality is Americans expect justice, and won't be very tolerable of legal tricks that allow violent individuals to walk free. Handled wisely by the courtss, this can be a good thing for America.

Handled unwisely by the courts, this could be a devastating blow to the credibility of America and the courts, and result in a series of unintended consequences. If it is up to politicians, the courts will be who takes the fall for failure, while the politicians will take credit for success. This condition is one more reason why the effect of this ruling will be interesting to watch, because unlike the partisans, we don't see this as a victory or defeat for America, rather the beginning of a process towards an unknown conclusion.