Supreme Court Justice Antonin Scalia says last week's 5-4 Supreme Court ruling that awards habeas corpus rights to terrorist suspects in Guantanamo Bay "will almost certainly cause more Americans to be killed."
Scalia, in his blistering dissent to the constitutional decision, says the court majority is laying the groundwork for the early release of “some very dangerous people.” He cites a report by Senate Republicans that finds at least 30 prisoners have returned to the battlefield following their release from Guantanamo.
Scalia notes that one previously released prisoner from the detention camp in Cuba was found to have detonated a suicide bomb in Iraq in May. This "return to the kill," he says, happened even after the military had concluded he was not an enemy combatant.
Scalia likens the Guantanamo detainees to the 400,000 prisoners of war held in the U.S. during World War II. Despite the fact that all of them were on U.S. soil, none was given the right to have their detention validated by habeas corpus action in federal court.
“The game of bait-and-switch [this] opinion plays upon the nation's commander in chief will make the war harder on us,” Scalia declares. “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, but it is this court's blatant abandonment of such a principle that produces [this decision],” he says.
The 70-page ruling by the high court – supported by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, Stephen G. Breyer and Anthony Kennedy – grants detainees the same rights as anyone else in custody in the United States to contest their detention before a judge.
Kennedy, writing for the 5-4 majority, acknowledges the terrorism threat the U.S. faces, but says the system the administration has put in place to classify detainees as enemy combatants and review those decisions is not an adequate substitute for the right to go before a civilian judge.
The current administration disagrees, arguing detainees have no rights and that the classification and review process is sufficient. President Bush suggests he might seek yet another law to keep terror suspects locked up at the prison camp, even as his presidency winds down and Democrats control Congress.
Scalia argues the decision “breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad. It sets our military commanders the impossible task of proving to a civilian court, under whatever standards this court devises in the future, that evidence supports the confinement of each and every enemy prisoner.”
Chief Justice John G. Roberts Jr., Justice Clarence Thomas and Justice Samuel A. Alito Jr., agree with Scalia, criticizing what they call “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”
Several prominent Republicans also disagree with the courts decision, including Republican candidate for president, John McCain, who says the court made "one of the worst decisions in the history of this country." Former House Speaker Newt Gingrich adds, the court will "cost us a city.”
“The nation will live to regret what the court has done,'' Scalia warns.
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