Scalia v. the Supreme Court: Who's right about Gitmo?

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Without question, Boumediene v. Bush is a landmark legal decision in America's war on terrorism. The U.S. Supreme Court ruled 5-4 on June 12 that foreign terrorism suspects held at Guantanamo Bay have a constitutional right to challenge their detention in American courts.Civil libertarians hailed the decision as a victory for the rule of law."To hold that the political branches may switch the Constitution on or off at will," wrote Justice Anthony Kennedy for the majority, "would lead to a regime in which they, not this Court, say 'what the law is.'"But Justice Antonin Scalia, in a blistering dissent, slammed the majority for departing from decades of constitutional law and undermining the nation's security.Did the court go too far in extending rights to detainees? Or is Scalia's criticism over the top? Should the Constitution apply to terrorists and unlawful enemy combatants? Ben Boychuk and Joel Mathis, the RedBlueAmerica columnists, square off.BEN BOYCHUKJustice Scalia may be forgiven for letting a bit of passion creep into his dissent from the court's precedent-shattering habeas corpus decision. The country is at war, after all, and it's fair to say Scalia would like America to win. By extending habeas corpus protection to unlawful enemy combatants, the court's five-justice majority "will make the war harder on us. It will almost certainly cause more Americans to be killed," Scalia writes.Scalia is certainly correct that the decision makes waging the war on terrorism more difficult. The Supreme Court's decision departs from previous cases. Prior to the court's ruling in Boumediene v. Bush, the writ of habeas corpus -- which places the burden of proof on those detaining the person to justify the detention -- never applied to aliens abroad. In fact, habeas corpus never applied to the more than 400,000 German prisoners held on American soil during World War II. And authorities had no idea how long that war would last.The laws of war have long allowed for removing combatants from the battlefield for the duration of the conflict. For some Gitmo detainees, that could be a very, very long time. Holy wars don't have expiration dates and we release these jihadists at our peril. We know that some former Guantanamo detainees have returned to kill Americans in Iraq and Afghanistan The five-justice majority wagers that granting terrorists the same rights and privileges as common criminals will have no meaningful, harmful effect on the United States. Scalia's opinion dispenses with such wishful thinking. In this war and at this time, it's not a bet most Americans should be willing to take.JOEL MATHIS Conservatives say the Boumediene decision gives terrorists more legal rights than Nazis had during World War II. This ignores two details: - A number of Gitmo detainees -- not all, by any means -- have turned out to be innocents, mistakenly imprisoned on false information.- Nazi POWs did not have American legal rights, but they were treated in compliance with the Geneva Conventions -- the same laws of war the Bush Administration has tried so hard to evade.Still, Antonin Scalia says the decision will "cause more Americans to be killed." In fact, more Americans probably will be killed; terrorists do attack us every now and again. We're certain to hear an "I told you so" from Scalia's camp next time it happens. But there's no reason to believe the court's decision will be the reason.Are we to believe America would have faced more attacks if terrorists had believed a more open legal system might spring them from accountability? Unlikely. Are we likely to release dangerous terrorists who will come back to haunt us? That doesn't have to be the case if the government proves its case in habeas hearings -- and it's not as though that scenario hadn't already occurred before the Gitmo ruling.We can fight terrorism without compromising the letter and spirit of the Constitution. Don't let Antonin Scalia tell you otherwise.Ben Boychuk and Joel Mathis blog daily at www.infinitemonkeysblog.com and joelmathis.blogspot.com.(Distributed by Scripps Howard News Service, http://www.scrippsnews.com)