For those waiting for the next shoe to drop, consider the noise arising from the largely unpublicized speech of Supreme Court Justice Antonin Scalia to be a strong indicator of its descent. Speaking to an audience primarily of legal acadamicians in Switzerland, Scalia dismissed the idea that detainees who have been labeled "enemy combatants" have any rights under the Geneva Convention or the US Constitution. He did indirectly acknowledge a bias that could influence his judgment by referencing his son who was deployed by the US Army to Iraq. One can understand a somewhat less tolerant attitude toward those who pose a direct threat to a loved one. However, such indiscriminate remarks by a member of the Supreme Court is noteworthy.
One of the premises upon which Scalia based his remarks is simply wrong. The Geneva Convention does give certain rights to humane treatment to captured enemy combatants. Indeed, one might say that such protections relating to the rules of engagement in war are a fundamental reason for the Convention itself. It is true however, that the Geneva Convention does not expressly grant a detainee the right to access to civil courts. The access to civil rights and court process comes from the combination of the Geneva Convention and the US Constitution. The Convention requires humane treatment of those within the control of US forces and authority. The Constitution provides rules and guidelines as to what such humane treatment entails. In effect, the Constitution defines the character of this Nation. If the Constitution permitted a system of summary execution without defense or right to face one's accuser, that would be the standard by which the US Government and courts would judge the treatment of detainees. But that is not the case, or at least not yet under the Bush administration and the current Supreme Court.
What Scalia seems to step over in his analysis is the assumption of guilt until innocense is proven, and applied in a situation where the opportunity to prove one's innocense is severely curtailed. The cases about the Gitmo detainees is primarily about the rights of prisoners to challenge the initial step in the process, the designation as "enemy combatant." Under current Bush administration rules and policies, a detainee does not even have the right to challenge the basis for being detained. In law, this is called "habeas corpus" or "present the body" to show why government action is taken. We have seen far too many examples in our judicial history of prisoners being condemned, imprisoned and in some cases even executed where the facts subsequently revealed conclusively that the wrong person had been accused. Imagine being imprisoned without access to counsel or the right to communicate with loved ones on the basis of being mistakenly identified as a political operative, or because a neighbor holding an old grudge falsely "informed" on you as being a terrorist.
So the question is not really whether to give solicitous aid to those who are justly detained for having actually participated in combat activities or in planning or directly abetting enemy activity. The question is whether the system under which these detainees are being held can withstand even a minor test of its integrity to determine whether it is consistent with the fundamental principals upon which we as a nation base our belief in democracy and liberty. Assuming that a detainee is actually an enemy combatant, simply because someone placed that label without explanation or review of the decision is tantamount to saying that a prisoner is guilty because the police arrested him or her. We need to question whether such a system reflects the character of this country that is founded upon and reflected in the US Constitution, as it has been construed throughout our history and under Supreme Court precedent.
If the last bastion of our democracy has lost sight of this basic responsibility and function, and Scalia's comments would suggest that possibility, then the nation is truly in trouble. We have met the enemy, and he is ourselves. We will have become the type of government and people that our government proposes to undermine and overthrow based upon some abstract concept of liberty, freedom and democracy that we do not ourselves embrace or believe in. At the very least, Scalia should have the decency and ethical propriety to recuse himself from hearing and deciding a case upon which he has publicly declared his specific opinion on the relevant issues as the final briefs were filed and only a few weeks prior to the oral argument before the Supreme Court. [For those of you who are unaware, the Supreme Court Justices are supposed to appear impartial, even if they cannot actually BE impartial in cases before them.]
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