I too am encouraged by the US Supreme Court’s Boumediene v. Bush ruling that detainees held at Gunatanamo Bay are entitled to Habeas Corpus protection — the right to challenge their detention in a US Court. I also appreciate this LA Times analysis on the “internationalist” considerations that likely influenced the Boumediene majority. Yet I’ve also been perplexed by the fury of the dissents and the hyperbolic claim by presidential candidate John McCain that the ruling was “one of the worst decisions in the history of this country.”
Three complaints stand out: First, dissenting Justice Scalia darkly warns that the ruling will “almost certainly” result in more American being killed. Second, because the US is deemed to be at”war” with those who don’t respect our values, we should not extend such rights to them. Cast as an inhuman “enemy,” they only understand the “language of force.”
Third, the critics condemn the Court for subjecting our laws to the dictates of international opinions — to the norms recognized by the rest of the world. That’s “judicial cosmopolitanism;” it’s “too French.” Or worse, it’d be like Thomas Jefferson in the first sentence of the US Declaration of Independence waxing about “a decent respect to the opinions of mankind.”
In researching case background (and hat tip to Helena for this resource) I came across a timeless and eloquent response to such concerns, in the form of a Friend of the Court filing, prepared last year by some of America’s best career diplomats. Endorsers include former US Ambassadors to Israel (and elsewhere) Sam Lewis, Thomas Pickering, and William (C) Harrop, as well as Bruce Laingen and the late William D. Rogers and our recently departed Charlottesville friend and mentor, David D. Newsom. (bless his memory)
Among their sage observations: (emphasis added):
If the mounting cost to American diplomatic interests is finally to be curbed, it is imperative, at minimum, to restore meaningful judicial review for prisoners at Guantanamo. Our nation cannot credibly champion the rule of law in the world, while being seen to disregard it in our own affairs….
[O]ur professional experience convinces us that American diplomatic credibility and effectiveness in many areas of international relations suffer greatly from the widely shared perception that, by denying prisoners at Guantanamo access to habeas corpus, our country has lost sight of its historic commitment to independent and effective judicial review of the lawfulness of detention…..
We have come to believe, in our representation of this country to other nations, that those nations are more willing to accept American leadership and counsel to the extent that they see us as true to the principle of freedom under the law. Indeed, the matter has rarely been better put than by President Bush in signing the Torture Victims Protection Act on March 12, 1992:
In this new era, in which countries throughout the world are turning to democratic institutions and the rule of law, we must maintain and strengthen our commitment to ensuring that they are respected everywhere….
(Perhaps this entire subject ought to be re-framed as, “Bush vs. Bush.”)
The admiration and respect for this nation abroad is a function of our own commitment to liberty under law. In this, we have led the world. The success of our interests in the wider arena turns importantly on the extent to which this nation is perceived as continuing to abide by these principles. Any hint that America is not all that it claims, or that it is prepared to ignore a “nonnegotiable demand of human dignity,” that it can accept that the Executive Branch may imprison whom it will and do so beyond the reach of the due process of law, demeans and weakens this nation’s voice abroad.
We have taken it as our duty to so state to this Court. There is no doubting America’s power at this juncture. But values count too. And, for this nation, there is no benefit in the exercise of our undoubted power unless it is deployed in the service of fundamental values: democracy, the rule of law, human rights, and due process. To the extent that we are perceived as compromising those values, to that extent will our efforts to promote our interests in the wider world be prejudiced. Such at least is our collective experience.
George Kennan’s Long Telegram from the American Embassy in Moscow to the State Department in 1946 defined the authoritarian bestiality of the Soviet system and its aim to break “the international authority of our state.” It was perhaps the most important American diplomatic communication of the last century. In closing, Kennan spoke for us all and for all time:
[T]he greatest danger that can befall us in coping with this problem of Soviet communism, is that we shall allow ourselves to become like those with whom we are coping.
I recommend this document as an enduring resource for policymakers, educators, and citizens alike, challenging us to consider that we don’t have to toss aside our values to defend them, that our values are a component of our potential influence abroad, that defending our principles need not detract from our “power.”