And in the end, this is the fight between the majority and the dissent: Kennedy and the justices who signed his opinion (David Souter, John Paul Stevens, Stephen Breyer, and Ruth Bader Ginsburg) are worried about the very real risk of a lifetime of mistaken imprisonment. And the dissenters (Scalia, Roberts, Clarence Thomas, and Samuel Alito) are worried about the risk of ... what? Not an actual mistaken release, but a day in court. The big threat here is of federal court review that may—somewhere far down the line, and at the moment entirely hypothetically—result in the release of a detainee or (more attenuated still) the disclosure of a piece of hypothetical information that could help the terrorists in their fight against us.
Six years of no trials, in the eyes of the dissenters, is more than justifiable in the hopes of dozens more years of no trials. And it's precisely that sense of time passing without consequence that so infuriates the majority. Justices Kennedy, Breyer, and Souter each observe in their opinions today that the passage of so many years while detainees waited and watched was preposterous. This is not some demented Supreme Court prematurely racing into a war zone with morning breath, uncombed hair, and misguided good intentions. This is a deliberative Supreme Court saying that it's been standing by for six long years. That's how long it's been since the Bush administration started doing battle with the federal courts alongside its battle against the enemy. Responding to the dissenters' fatuous complaint that the majority should have waited to see how the tribunals played out before ruling on their constitutional infirmity, Kennedy observes that, as yet, the game still hasn't even started, and "the costs of delay can no longer be borne by those who are held in custody." As David Barron points out at "Convictions," the court is saying that if Congress wanted to suspend the right to habeas, it should have done so, clearly and definitively. The court is also saying that six years of detainee victories that—for all the change on the ground at Guantanamo—might as well have been losses are not exactly a ringing endorsement of the American legal system.
Justice Scalia, meanwhile, is banking on someday cashing in the "I told you so" chit he wrote for himself today. In the event that one of the prisoners who has suffered years of abuse and mistreatment at Guantanamo is someday actually released following a federal habeas proceeding and blows something up, Scalia wants to be able to point at Justice Kennedy as the man who let him go. Or if in the course of a someday trial, a piece of evidence is leaked that somehow strengthens a terrorist group, he can blame Kennedy for his blind faith in the federal courts. The dissenters here are unwilling to bear the risk that any of the 270 men at Guantanamo—among them people who were grabbed as teens and others who claim actual innocence—go free. And, indeed, reasonable people can disagree about whether that risk is too much to bear. But Scalia and his dissenting friends today made clear that this is not the risk to which they most object. What they cannot accept is the risk that their brothers and sisters on the federal bench—with decades of judicial experience and the Constitution to light their way—might now do what they are trained to do: hear cases.
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