This is a constitutional ruling for the ages. The issue was whether the Constitution could be switched on and off at will, as Justice Anthony Kennedy, writing for the 5-4 majority, put it. Dissenting, Justice Antonin Scalia warned that Americans would die as a result of the ruling. But Justice Kennedy wisely said security exists "in fidelity to freedom's first principles."
Detainee hearings at Guantanamo have been rigged by the state. The men who brought yesterday's case are Bosnians who were suspected of plotting to bomb the U.S. embassy in Sarajevo; Bosnian police turned them over six years ago to U.S. authorities. When a U.S. military tribunal declared them enemy combatants, they had no lawyers to represent them; they were not allowed to know the most important allegations against them; they had limited means to find or present evidence in their defence; and there were no limits on the state's use of hearsay, making it impossible for them to challenge witnesses. And because the Supreme Court had ruled it acceptable to hold prisoners for the duration of a war - and the war on terror could last a generation or more - these men faced a virtual life sentence.
No wonder a British jurist called Guantanamo Bay a legal black hole. And no wonder all Western countries, except Canada, insisted that the U.S. send their nationals home. Only Canada has allowed its citizen, Omar Khadr, arrested at 15 in Afghanistan (he'll be 22 in September) to disappear into that black hole. Let the process work, the Harper government says. But the very foundation of the process, as the U.S. Supreme Court says, is unlawful.