In 2008, in deciding a case called Boumediene vs. Bush, the Supreme Court ruled that Guantánamo detainees have a constitutional right to challenge the legality of their detention by filing petitions for habeas corpus in American federal courts. In that case and others generated by the Bush administration's attempts to put Guantanamo detainees in a legal dead zone, the Court has insisted that rights guaranteed by the U.S. Constitution apply outside the United States as well as inside it.
Since then, however, the Court has refused to hear individual Guantanamo detainee cases. Last week, on June 11, the Court outraged constitutional rights activists and attorneys for Guantanamo detainees by refusing to hear seven detainee petitions for writs of certiorari (the writs approve the referral of a case from a lower court to the Supreme Court; the refusal to grant them doesn't necessarily indicate that the Supreme Court agrees with the lower court's decision).
The cases presented to the Court for "cert" had come from the federal appeals court for the Washington, D.C. circuit, an extremely conservative court that has been outspokenly critical of the Boumediene v. Bush decision. A justice of that court, Janice Rogers Brown, wrote in a ruling on the case of one detainee, "Boumediene's airy suppositions have... fundamentally altered the calculus of war, guaranteeing that the benefit of intelligence that might be gained—even from high-value detainees—is outweighed by the systemic cost of defending detention decisions."
But that opinion raises a serious question about whether objections involving "systemic cost" should have weight when the issue is justice. And the justice issue is a serious one given that the government has admitted that 92 percent of the people detained at Guantanamo during the prison's 10 years in operation had no connection with al Qaeda.
Moreover, what Brown refers to as the "systemic cost" is a result of the high error rate in the capture of hundreds of people who were supposed to be al Qaeda combatants, but were not.
A new finding by the National Counterterrorism Center sheds an interesting backlight on discussions of the legal never-never-land surrounding Guantanamo, established to be a bastion against terrorism. The actual risk to any American of being the victim of a terror attack is very low; only 17 private citizens of the U.S. died because of terrorist activities last year, and only 15 in 2010, according to the latest report from the National Counterterrorism Center (read the detailed report on terrorism from 2011 through March, 2012 at www.nctc.gov/docs/2011_NCTC_Annual_Report_Final.pdf). That's fewer than the 20 killed each year on average in mass shootings in the U.S. "[A]n irrational fear of terrorism is both unwarranted and a poor basis for public policy decisions," Micah Zenko, a member of the Council on Foreign Relations, wrote in an Atlantic article entitled "Americans Are As Likely to Be Killed by Their Own Furniture as by Terrorism."