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Scalia: Court’s Decision Restoring Habeas ‘Will Almost Certainly Cause More Americans To Be Killed’

By Satyam Khanna on June 12, 2008 at 2:36 pm

"Scalia: Court’s Decision Restoring Habeas ‘Will Almost Certainly Cause More Americans To Be Killed’"

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scalia32.jpgIn a landmark decision today, the Supreme Court ruled that habeas corpus protections apply to detainees held at Guantanamo Bay. “We hold these petitioners do have the habeas corpus privilege,” wrote Justice Anthony Kennedy in the majority opinion. The decision was a “a stunning blow to the Bush Administration in its war-on-terrorism policies,” SCOTUS Blog noted.

Conservative Justice Antonin Scalia, however, is outraged. In his dissenting opinion, he devoted an entire section to “a description of the disastrous consequences of what the Court has done today,” a procedure “contrary to my usual practice,” he admitted. Scalia adopted extreme rhetoric about the impacts of the decision, calling it a “self-invited…incursion into military affairs” that would “almost certainly” kill Americans. Some lowlights:

– “America is at war with radical Islamists. … Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq.”

– “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.”

– “Today the Court warps our Constitution.”

– “The Nation will live to regret what the Court has done today.”

It is unlikely that the Supreme Court’s decision will have the impacts that Scalia claims. As Kennedy explained, “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.” Discussing the restoration of habeas at Guantanamo last year, Colin Powell noted:

The concern was, well, then they’ll have access to lawyers, then they’ll have access to writs of habeas corpus. So what? Let them. Isn’t that what our system’s all about? And by the way, America, unfortunately, has too many people in jail, all of whom had lawyers and access to writs of habeas corpus. And so we can handle bad people in our system.

But as a cheerleader for the administration’s terrorism policies, Scalia’s rhetoric isn’t surprising. It is “absurd” to say that you “can’t stick something under the fingernails,” or “smack [a detainee] in the face,” he said in February. “No. To the contrary,” Scalia said when asked whether torture violates the “cruel and unusual punishment” clause.

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Update

Brian Tamanaha at Balkinization calls Scalia’s dissent “an instant classic of the worst order: fear-mongering.”

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