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The rights of enemy combatants

A sharply divided U.S. Supreme Court ruled Thursday that some 270 foreigners being held at Guantanamo Bay can challenge their extended imprisonment in federal court, thus striking down as inadequate an alternative “combatant status” review system set up by Congress.

The court’s 5-4 majority concluded that the foreigners held at the U.S. naval base at Guantanamo Bay, Cuba, retain the same rights as U.S. residents to seek writs of habeas corpus. The landmark ruling will permit the accused enemy combatants to see the evidence that justifies their captivity.

“Some of these petitioners have been in custody for the past six years with no definitive judicial determination as to the legality of their detention,” wrote Justice Anthony Kennedy for the majority. “Their access to the writ is necessary to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.”

The long-awaited ruling marks the third time in four years the Supreme Court has rebuffed the administration’s efforts to exclude such foreign prisoners from domestic legal protections.

“The (Constitution’s) framers viewed freedom from unlawful restraint as a fundamental precept of liberty,” Justice Kennedy wrote, “and they understood the writ of habeas corpus as a vital instrument to secure that freedom.”

The question, of course, is whether the founders meant to extend that right — or whether such a right can be honored in practice, at all — without crippling the ability to prosecute a war against foreign aggressors. When eight Nazi saboteurs were rounded up after being dropped off on Long Island by a German submarine in 1942, after all, they were not treated like domestic criminal defendants. They were tried by a military commission; six were promptly shot.

Traveling in Italy, President Bush said Thursday, “We’ll abide by the court’s decision. That doesn’t mean I have to agree with it. It’s a deeply divided court, and I strongly agree with those who dissented.”

Indeed, the court’s conservative wing — Chief Justice John G. Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito — dissented sharply. “The nation will live to regret what the court has done today,” Justice Scalia warned.

Republican Sen. Lindsey Graham of South Carolina found the court’s ruling “tremendously dangerous and irresponsible.” He complained the civilian justices didn’t understand military necessity.

There is a feel-good aspect to this decision. The idea of men being incarcerated indefinitely, without being given a chance to defend themselves or even learn the charges against them, feels un-American. The instinct of the slim liberal majority to set that wrong to rights is understandable. It would be somewhat reassuring if the court had ruled that such standards apply only because the nation is not now in a state of declared war — that this ruling could be set aside by the simple expedient of the Congress declaring war.

But it does not appear the court has drawn us that clear a line. The reason that could mean trouble: The courts have shown a predictable tendency to take previous rulings and extend the logic of their premises, sometimes far beyond what anyone would initially have imagined.

Are we now to understand that enemy combatants are protected by such civil and constitutional rights on the field of battle itself? That an American serviceman can face charges of executing an enemy without granting a proper trial and appeals process should the G.I. simply shoot an enemy who’s charging him with a bayonet?

Some will reply, “That’s absurd.” But it would surely have been dubbed an equally “absurd” objection to the Endangered Species Act had someone risen, back in 1975, to predict that said law would block the construction of a life-saving hospital in Southern California because paving the driveway might inconvenience a “sands-loving” maggot.

Just give the courts time.

Americans are greatly enamored of the extension of human and constitutional rights where possible, and that instinct resounds to our credit. But Justices Roberts and Scalia have a point, as well: Fighting a war is not like fighting crime. You don’t always have evidence and witnesses adequate to “reasonable doubt” standards, nor can any army hope to succeed in a thicket of writs and lawyers. For the most part, you just shoot them.

Interrogations at overseas prisons have “given us information that has saved innocent lives by helping us stop new attacks — here in the United States and across the world,” President Bush noted, the last time the court interceded in the handling of such prisoners.

The nation is “at war with radical Islamists,” Justice Scalia warned again Thursday; the court’s decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.”

Like offering a scorpion a ride across a rain-swollen creek, decisions like this one can have real-world costs. Do the justices understand that? Are they ready to stand accountable for those costs? How?

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