It should not be surprising to anyone that the Supreme Court of the United States upheld the right of habeas corpus for people held by the government of the United States. After all, this is a right English-speaking people have cherished since 1305. It is enshrined in the Constitution, which states that the right of habeas corpus can only be suspended in times of insurrection and rebellion -- a very high standard that no one could think our current military activities in Afghanistan and Iraq meet. No, the surprising thing is that 4 justices dissented.
The Supreme Court rebuked the Bush administration yesterday for a third time for its handling of the rights of terrorism detainees held at Guantánamo Bay, Cuba, saying those in custody there have a constitutional right to challenge their captivity in federal courts.
By a 5-4 vote that brought strongly worded and remorseful dissents from the court's conservative justices, the majority held that an alternative procedure designed by the administration and Congress was inadequate to ensure that the detainees, some of whom have been imprisoned for six years without a hearing, receive their day in court.
Justice Antonin Scalia took the unusual step of summarizing his dissent from the bench, calling the court's decision a "self-invited ... incursion into military affairs," and was even stronger in a written dissent in which he was joined by Chief Justice John G. Roberts Jr. and justices Clarence Thomas and Samuel A. Alito Jr. "America is at war with radical Islamists," Scalia wrote, adding that the decision "will almost certainly cause more Americans to be killed."
When I first read Justice Scalia's warning that granting the prisoners at Guantánamo Bay the right to challenge their detention in federal court would "almost certainly" cost American lives I was baffled. What could he possibly mean? He is not an expert on Muslim or Arab psychology, history or culture or on religious extremism. He has no special knowledge or expertise in these matters. He did not refer to any testimony by experts to justify his conclusions. In fact all the experts on such matters that I have heard say that by treating people harshly and unfairly we are motivating other, previously peaceful, people to become anti-American terrorists. The expert opinion is that holding prisoners indefinitely without trial at Guantánamo Bay makes us less safe by inflaming anti-American passions in the Middle East. See samples of such opinion here, here and here.
No, Justice Scalia's opinion is not based on any facts or expert opinion, but must arise out his understanding of how the world works. The only way his opinion makes sense is if he sees the world the same way as does the Corleone family in "The Godfather." In the book and movie the Godfather's family accepts his murders, even of family members, as necessary to keep the family safe by being strong. In the Mafia world-view being ruthless and violent is being strong and a reluctance to be violent is weakness – and weakness results in being killed by the strong.
I doubt that 4/9 of the population of the United States sees the world this way, but apparently 4/9 of our Supreme Court does. How did such a situation arise?