Scalia’s fear factor

David Kaye, a former State Department staff lawyer with responsibility for the law of war, is executive director of the UCLA School of Law's international human rights program.

Justice Antonin Scalia has been a controversial voice of fidelity to the text of the Constitution and a forceful advocate for conservatism throughout his 22 years on the Supreme Court. Yet Thursday, his dissent in a key ruling in the war on terrorism showed him at his worst. His ill-considered language makes it harder for national leaders to clean up one of the darkest blots on America’s reputation in President Bush’s post- 9/11 world -- the policy of detaining enemy combatants that is summed up in one word: Guantanamo.

The court decided that Guantanamo Bay detainees have the right (known as habeas corpus) to challenge the legality of their detentions in federal district court. It did not authorize the release of a single detainee, nor did it answer many tough questions (What should be the standard adopted in evaluating a detainee’s claim? What deference should be given the military by a civilian court?). But it squarely stated that the Constitution has full effect at Guantanamo, available even to those detained there.

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony M. Kennedy wrote for the majority.

The decision infuriated Scalia. It “will make the war harder on us,” he asserted in dissent. “It will almost certainly cause more Americans to be killed.”


Scalia’s overheated rhetoric harms a critical national decision that must be made about what to do next with the detainees. Be afraid! he says. And know whom to blame when the next terrorist attack comes! It’s exactly this kind of demagoguery, designed to limit debate, that got us where we are today, with the Congress adopting a detainee law based on fear rather than effective policy and American principles

The sad truth is that Guantanamo has been an epic failure. For more than six years, hundreds of individuals have been held there, some on the flimsiest of evidence and some undoubtedly dangerous, devoted terrorists. Fewer than 300 remain today. None has been tried by the military tribunals set up by Bush in 2001 and ratified by Congress in 2006. Hundreds have been released to their home countries after an opaque process in which the military determined that they “no longer” pose a threat. Some have returned to battle.

Scalia seems to believe that Guantanamo has made Americans safer. But we know that Guantanamo and its harsh interrogation policies have attracted global disapproval and made it difficult for our allies to cooperate with us on counter-terrorism issues.

And are we safer today than we would have been if the president, in 2001 or early 2002, had established a legally sustainable process for determining whether individuals brought to the prison at Guantanamo were in fact associated with the Taliban or Al Qaeda, as the State Department advised?

Are we safer than we would have been if the president had sought to devise a secure but humane policy in a good-faith consultation with Congress long before the Supreme Court forced him to do so (in the case of Hamdan vs. Rumsfeld in 2006)?

To turn the page on Guantanamo will most likely require congressional action based on dispassionate debate about our limited options. A raft of ideas from liberals, centrists and conservatives have been proposed to replace the heavy-handed detention of Guantanamo with a better system.

For instance, it is already possible to imagine a new legal framework that would allow long-term detention in the United States of a small number of detainees who would either be held with regular and rigorous judicial review of their status (much as Israel has done with suspected terrorists it detains), or prosecuted in federal court or military tribunals.

Presidential politics will likely conspire against such action before next year. This is a shame, particularly for detainees who have been held since 2002. Barack Obama and John McCain support the closing of Guantanamo, and they should each work to lower the temperature of the rhetoric. Congressional races may also make it more difficult to move new legislation forward. Experience has shown that members of Congress who support closing Guantanamo will be liable to a Scalia-type attack.


Getting out of the Guantanamo morass must be a national priority, based not on fear but on sound policy. It is long past time for the president and Congress, not just the Supreme Court, to step up to that challenge.