A victory for America

The Supreme Court's decision today, affirming the right of Guantanamo Bay detainees to habeas corpus, is not just a victory for the Constitution and the law, but for America. By that I don't mean for the nation, but for the idea of America: that we have, as John Adams put it, a government of laws and not of men, that we have enough faith in our constitutional system to apply it even to great threats by those who would destroy our liberties, and that the law protects even the most loathsome persons.

This is the America that those parts of the world that believe in or aspire to liberty have seen as a beacon of freedom for more than two centuries.

It was, as you probably know, a "close-run thing," a 5-4 decision; the Great Writ of habeas corpus hung on a single vote. Sometimes, the scales of justice are barely tipped, yet the result is epochal.

Let me take a moment here to comment on what has been reported about Justice Antonin Scalia's dissent; I confess that I have not read the decision as yet. Scalia is said to have commented that, as a result of the decision, more Americans will die. There is no way to tell whether that is true, and it is unlikely ever to be knowable. But let us assume that Justice Scalia is correct. Does that make the decision wrong. No. No, it does not. We know that our system of justice may impose such costs on our society. We repeatedly boast, after all, that our system is intended to let 50 or 100 guilty people go free in preference to convicting one innocent individual. Some of those guilty persons will go back to preying on society, and we have always known that. And until the Bush Administration, we thought we knew that the nation abided by the Geneva Convention, our Constitution and our laws, even though those provisos might "tie the hands" of our intelligence officers and interrogators. Justice Holmes said that taxes are the price of civilization, but they are not the only price we willingly pay.