O Guantanamo

Snap judgment on the court´s ruling: this is the graf that counts:

A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years. Hence the hollow ring when the dissenters suggest that the court is somehow precipitating the judiciary into reviewing claims that the military … could handle within some reasonable period of time. — Justice Souter

Fact is, the Guantanamo detainees are not all of a piece. Gitmo is a hodgepodge of freaks, has-beens, brutes, and hapless extras. Some detainees ought to be there because of what they´ve done (enemy combatants). Some of them ought to be there because of who they are. But for every handful or so of those characters, there are random Uighurs and others who seem to be ´unreturnable´to their place of origin. Any commentary on Guantanamo has to start from this point of departure, I think.

But the real problem is the interminable detention period, which has no reasonable judicial excuse. The dissenters are quite right that America has offered a quite generous set of procedural protections for enemy combatants. But these are mocked when a detainee is an indefinite prisoner with indefinitely incomprehensible status. The problem is not the legal process but what happens when the federal government holds that process, at its whim, in open-ended abeyance. The federal government still gets a lot of leeway, and the benefit of the doubt, from the Court, especially in wartime. But ours is so nonobviously wartime, and the Bush administration has been so lax, opaque, and seemingly quite pointless in its interminable detention of a wide range of variably important prisoners, that today´s ruling seems to me to confirm the wisdom of both the majority and the dissent. I suspect the ruling will, if anything, cause most of these detainees to actually be tried, which would be nice, but not released, which would not be. And that strikes me as not only nice but just.

The important thing to remember on this note is that the unilateral detention of enemy combatants, including holding without trial, takes on an entirely different flavor when it´s maintained for many years instead of many months. Whereas the latter is eminently reasonable on paper, the former has, in practice, proven rather ridiculous. Hopefully what this ruling will not do is contribute to a great attack on the whole idea of enemy combatanthood, which is a real and important category to keep properly integrated into our legal system. Sadly, pushing these kinds of questions to the Supreme Court tends to flatten out the distinctions that a healthy legislature and executive ought to be able to sustain responsibly without training wheels, manacles, or admonitions.