JURIST Guest Columnist Lt. Col. Stephen Abraham (US Army, ret.), formerly assigned to the Office for the Administrative Review of the Detention of Enemy Combatants, says that the US Supreme Court's opinion in Boumediene v. Bush is the consequence of mistaken policy decisions made over the past six years and is a clear instruction to turn back from that path…

On April 13, 1945, Supreme Court Justice Robert Jackson, speaking on the matter of war crimes trials, observed that “Farcical judicial trials conducted by us will destroy confidence in the judicial process as quickly as those conducted by any other people.” He would later serve as chief prosecutor at the Nuremburg War Crimes Trials.

On June 12, 2008, the United States Supreme Court issued its opinion in Boumediene v. Bush, holding that provisions of the Military Commissions Act of 2006 relating to hearings for detainees at Guantánamo did not provide an adequate substitute for habeas corpus and therefore were unconstitutional.

The response was immediate – many rushed to evaluate what was to become of the “terrorist suspects at Guantánamo” while others mistakenly decried the decision as hastening the release of terrorists without further hearing. But in our haste to determine the effect of this opinion on the fate of 250 detainees at Guantánamo, we risk overlooking a far more reaching meaning of the opinion, one that, if disregarded, would ultimately relegate this latest decision to the position of a legal and historical footnote with little practical relevance.

In June of 2007, my declaration was submitted to the United States Supreme Court. In it, I spoke of my experiences while assigned to the military organization responsible for conducting the detainee tribunals and of my participation on such a panel. I concluded in my remarks, as I concluded while assigned to the organization, that the process put in place by the Executive Branch to review its detention of the prisoners at Guantánamo was designed not to ascertain the truth, but to legitimize the detentions while appearing to satisfy the Supreme Court’s mandate in Rasul that the government be required to justify the detentions. That process was intended to, or at least had the consequence of, lending a veneer of legitimacy to the detentions, to launder decisions already made.

It has been suggested by some that this declaration had the effect of causing the Court to change its earlier decision to deny review in the Boumediene case, a decision that effectively would have delayed, if not foreclosed, the possibility of Wednesday’s decision. I would not presume such an effect. But no matter what the reasons, the Court did reverse its decision, did hear the case in December, and did issue an opinion a year after the declaration was submitted.

Under the Court’s ruling, the provisions of the Military Commissions Act (MCA) denying federal courts jurisdiction to hear habeas actions relating to the detention of individuals at Guantánamo could not be constitutionally valid in light of the detainees’ constitutional privilege of habeas corpus. Specifically, the Court held that the inability of the detainees to challenge their detention proceedings and the prohibition in the MCA of a federal court’s review of alleged errors in those proceedings resulted, on their face, in an inadequate substitute for habeas corpus.

Just as was the case with the declaration and subsequent decision of the Court to hear the case, opinions regarding the Court’s decision were narrowly focused and immediate. Most reports seized upon the fact that terrorism suspects imprisoned at Guantánamo would now have their day in court. That, to my mind, focused on the consequences but not the meaning of the decision.

Guantánamo and the condition of the detainees evidence how speedily we tired of our constitutional rights, and how greatly we clamored for the illusion of security that we should so willingly, so quickly, and so easily surrendered one for the other.

The Supreme Court’s decision was not about Guantánamo; it was about here. It was not about the application of one particular act of Congress, but the application of all of our laws, whether they stem from any act of Congress, understandings of our Courts, or deeper, immutable principles of man and the rights attending our existence. It was not about our security but about our willingness to live under such conditions as we would impose on others. Ultimately, it was not about detainees by whatever names we may give them, but about every one of us and the inevitability of the consequences of our embracing of two standards of justice.

Justice Scalia warned in dissenting that the Court's decision “will almost certainly cause more Americans to be killed.” To him I submit that the failure of the Court to act would have affirmed the course taken these many years that have led to the deprivation of human liberties in specific instances and, more broadly, a factual precedent for the denial of the existence of those fundamental rights in the first instance. The Supreme Court's decision in Boumediene was compelled by threats of those that would end the great experiment that is not merely this nation's history but its destiny. Moreover, I would respond that more brave Americans than can be imagined by Justice Scalia have paid the ultimate sacrifice to preserve inalienable rights, the very essence and immutability of which have been denied by exercise of Executive prerogative.

At the opening session to the Nuremberg Trials, Robert Jackson, exclaimed, “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.” Wednesday, we were reminded of the record that we, as a nation, have allowed to be written for the more than six years that Guantánamo has remained open.

The Supreme Court’s opinion in Boumediene v. Bush was the consequence of our decisions over the past six years and is a clear instruction to turn back from that path.

Lt. Col. Stephen Abraham served with the Office for the Administrative Review of the Detention of Enemy Combatants in 2004 and 2005. He has served in the United States Army Reserve as a military intelligence officer for more than 22 years.
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