Boumediene v. Bush is one of the most important Supreme Court decisions in recent years. American law has never before recognized that aliens imprisoned by the United States abroad have such rights. The disgrace of Guantánamo has produced a landmark change in our constitutional practice.
The Bush administration, as part of its so-called "war on terror," created a unique category of prisoners that it claims have no such right because they are aliens, not citizens, and because they are held not in an American prison but in foreign territory. The administration labels them enemy combatants but refuses to treat them as prisoners of war with the protection that status gives. It calls them outlaws but refuses them the rights of anyone else accused of a crime. It keeps them locked up behind barbed wire and interrogates them under torture. The Supreme Court has now declared that this shameful episode in our history must end.
Senator John McCain called the decision "one of the worst" in the country's history. The conservative press was horrified: The Wall Street Journal said that Kennedy had turned the Constitution into a "suicide pact." No one explained why it would destroy America to allow people who claim innocence of any crime, or threat, a chance to defend that claim before an American judge who is presumably just as worried about his family's security as the president is. Why would it be suicidal to allow them the same opportunity for defense that we allow people indicted as serial killers?
Senator Barack Obama, on the other hand, welcomed the decision, so the Court's action may well become an important issue in the coming presidential election. McCain has already promised that if elected he will appoint more justices like Roberts and Alito. It would take only one such appointment to make further decisions like Boumediene impossible, and probably reverse that decision itself.
