What is the price of due process? According to Supreme Court Justice Antonin Scalia, the price could be American lives. He wrote that in a blistering dissent to a Supreme Court decision last week that declared that the “detainees” held in Guantanamo Bay have a right to challenge their detention before an independent judge in federal court. Writing for the majority, Justice Anthony Kennedy said that the U.S. Constitution and our system of laws must prevail, even in times of war and terrorism.
Some of the prisoners at Guantanomo have been there for more than six years without a hearing, without knowing the specific charges against them, and with no apparent end in sight for their detention. The Bush Administration believes that these individuals are “enemy combatants” under military code, prisoners captured in the War on Terror, and hence subject to military tribunal rules, not conventional judicial process. The current administration also clearly believes that because the prisoners are held on a military base in Cuba, outside of the United States, that U.S. law does not apply.
The Supreme Court has rebuked the Bush Administration before, and now does so again. While the nation and world remain on alert for new terrorist threats, our national defense must not abridge the very rights we seek to protect. Yes, allowing terror suspects to have some due process runs the risk that they might prevail in court and thus gain their freedom. Such is the risk of justice — the risk that some of the accused might actually go free; the risk that we might find out that some of the suspects might actually be innocent.
The price of due process is risk; the purpose of due process is justice.