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Supreme Court preserves a razor-thin redemption

By Robyn E. Blumner, Times Columnist
In print: Sunday, June 22, 2008

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We just came very close to losing our national character. By a one-vote margin the U.S. Supreme Court salvaged it.

By ruling in Boumediene vs. Bush that Guantanamo detainees have habeas corpus rights — a ward against arbitrary imprisonment considered foundational to any free society — the high court held back a radical and disastrous restructuring of our constitutional system where the president is granted monarchical powers.

But that hasn't stopped hysteria from gripping the ruling's opponents, starting with the unhinged and emotional dissent by Justice Antonin Scalia. He first lists the number of Americans killed by "radical Islamists" in various recent terror attacks. Then Scalia ominously predicts that the court's ruling "will almost certainly cause more Americans to be killed."

Newt Gingrich, the former Republican House speaker, followed on Face the Nation by saying the court decision "is a disaster which could cost us a city."

Let's see, which is more likely to lead to increased attacks on Americans: (1) Being seen by the world as injecting a degree of fair process into the imprisonment of hundreds of Muslim men, so that only those who have truly threatened America's safety remain under lock? Or, (2) Being seen as disregarding and discounting the human rights of Muslims by holding them indefinitely without offering up any proof of wrongdoing?

The bloviaters on Fox News and their blinder-sporting audience may be the only ones left who don't know that hundreds of prisoners from Guantanamo who were dubbed "the worst of the worst" have now been freed. And while a relative handful of those have turned around to fight us, in large measure that has not happened. The Pentagon says that only 36 of the 420 prisoners released without charge are suspected to have or have returned to terrorism.

In other words, we simply got it wrong, time after time. Of the some 775 prisoners we sent to Guantanamo, the Pentagon only intends to put about 80 on trial. Many of those we picked up were not dangerous to the United States; according to published accounts, a number were sold to us by bounty hunters and warlords looking to make money or rid themselves of rivals.

Then we held them for years — seriously mistreating some — without giving them a chance to demonstrate their innocence.

How is getting rid of such travesties indifferent to American lives? I would call it a rescue. The Supreme Court has saved us from an administration that seems hell-bent on fostering Muslim resentment and incubating avenging jihad.

Upholding the Constitution doesn't make us less safe, only more careful with the lives of other people. Affording timely due process to those we suspect is an honorable endeavor engendering goodwill and worldwide respect, and serving, ultimately, as great a protective shield against attack.

Moreover, this is what America is about. This is what we do. This is who we are.

But, it was a very close call. Imagine if the court had gone the other way and determined that no court could review President Bush's designation of non-Americans for indefinite detention in an endless war on a limitless battlefield. And imagine if the court had said it was okay that hearings provided detainees are so stacked that the prisoner might not even get to see the "evidence" against him.

This is what tyrants tell a scared population: "To make you safe I need the power to dispense with fair process for some prisoners. Besides, they don't deserve it."

How many governments have made that very claim: Pinochet's Chile, Papa Doc's Haiti, Gadhafi's Libya, Mugabe's Zimbabwe? The list is endless and the company is distasteful.

It is positively mind-boggling that Sen. John McCain wants to add the United States to this pantheon. But his unreserved condemnation of the Boumediene ruling clarifies that beyond eliminating waterboarding, his policies toward detainees would look very much like the current court-repudiated ones.

We are one McCain-appointed justice away from that day.