The Supreme Court promotes the law of the jungle

The Bush administration has begun planning for life after Boumediene, the notorious ruling on Guantanamo detainee rights issued by the U.S. Supreme Court three weeks ago. Although the Bush administration lost in court, it is the U.S. Supreme Court and the U.S. legal system in general that will be the greatest losers in the long run. The American public will have a hard time understanding why some of the most dangerous men in the world are going to be let free over the next few years, as now seems inevitable. Ironically, the law given the greatest boost by the Supreme Court will be the law of the jungle.

This story from yesterday’s Washington Post explains what Bush administration officials are now grappling with:

Under one scenario being considered by President Bush's Cabinet, about 80 detainees would remain at the facility in Cuba to be tried by military commissions, and about 65 others would be turned over to their native countries, according to several sources familiar with the talks, who spoke on the condition of anonymity because of the sensitivity of the issue.

But the focus of the intensifying debate is what to do with about 120 remaining prisoners, who are viewed by the administration as too dangerous to release but who are unlikely to be brought before military commissions because of a lack of evidence. Officials are considering whether to propose legislation in coming days that would establish legal procedures for such prisoners, who could be transferred to military or civilian prisons on the U.S. mainland, sources said.

[…]

Defense Secretary Robert M. Gates has advocated closing Guantanamo since he took
office in 2006, believing that the detention facility is so tainted by its reputation that it hurts the United States internationally. He has suggested that Congress come up with ideas for solving the problem, but lawmakers have not done so.

"He's very pragmatic and realistic about this and is open to alternatives that would allow Guantanamo to be closed," said one defense official who was not authorized to speak publicly about the discussions. "But it must be a legal construct that enables the United States, and the world at large, to keep these hard-core terrorists from being able to attack innocent people."

Secretary Gates, along with many others, may wish for a system of preventive detention. But there is no such thing as “preventive detention” in the U.S. criminal justice system. There are five votes on the U.S. Supreme Court that have irrevocably moved the Guantanamo detainees from a military context to a U.S. criminal law context, in spite of statutes passed to the contrary by the U.S. Congress.

With the detainees now granted habeas corpus rights, the government will now have to present evidence of a crime, in which case a U.S. District Court judge will set a date for a trial. Or the government will have to release the detainee. It should be clear that these five justices will swat away any hypothetical attempt by Congress to establish an alternative that would provide for preventive detention, even for the 120 most difficult and dangerous cases.

We can now predict how this story will develop over the next five years. The next administration will continue the Bush administration’s practice of transferring those it can to other governments. In order to do so, the next administration will have to take more risks with dangerous terrorists and worry less about the possibility of torture after these detainees arrive with their new hosts.

Those detainees slated for trial by military commission will undergo these trials. But it is very likely that the U.S. Supreme Court will find these trial procedures inadequate. The government will then have to retry those it can in federal court. The rest (perhaps even Khalid Sheik Mohammed?) will get transferred away into foreign custody.

Although the U.S. government will attempt to conduct these transfers as quietly as possible, there will still be many propaganda victories for al Qaeda along the way, as these former detainees escape from foreign custody and disappear from physical, but not electronic, view.

The American public will rightly wonder why its legal system was unable to prosecute the most dangerous offenders in the world. Or how this became a legal rather than a military matter in the first place. The U.S. Supreme Court and the wider system of justice in the U.S. will risk a large drop in moral authority as a result of the Court’s interference in the Guantanamo matter.

As a final rebuke to the Court’s majority in the Boumediene and Rasul decisions, the dangerous detainees released into the wild will provide years of employment to special operations direct action shooters, vengeful militiamen, bounty hunters, paid informants, paid killers, and all other types of lawless adventurers. In its misguided attempt to extend the virtue of the law, this majority of the Supreme Court will have given a great boost to the law of the jungle. And it will have tarnished the authority of Western law by demonstrating that in these cases extra-judicial means had to be employed to protect the public.