A matter of feelings or a matter of law?

The Des-Moines Register editorials are often long on "fairness" and short on facts.

Today, there's this gem of thought:

The Supreme Court in 2009, to great fanfare and congratulations by civil libertarians, ruled that terrorist suspects held at Guantanamo have a constitutional right to challenge their imprisonment in U.S. federal courts. This fundamental right of habeas corpus — that is, the right of prisoners to be able to challenge their confinement before a judge — applies to Guantanamo detainees, too.

The court was not clear on precisely what legal standards apply, however. It left the details to the lower federal courts. That has fallen to the U.S. Court of Appeals for the District of Columbia Circuit in Washington. The court has yet to approve an appeal from Guantanamo, and the Supreme Court has consistently refused to second-guess the lower court. Last week, for example, the Supreme Court summarily dismissed appeals from six Guantanamo detainees.

That the SCOTUS agreed to hear the case in 2009 baffles me.  These terrorists were foreign nationals captured on a foreign battlefield.  They wore no insignia or uniform declaring them to be soldiers in a military force (I'll get back to why that's significant).  They're not U.S. citizens, so why grant them the same rights?

About the only way you could argue for constitutional protections for these individuals is to refer to treaty law.  Is the foreign national a citizen of a nation with whom we have a treaty?  More importantly, do they declare themselves a citizen of that nation, or have they renounced their citizenship?  Terrorists that dislike the U.S. often don't like governments that would stoop so low as to have a treaty with the U.S.

Closing Guantanamo, which has now operated for more than a decade, will not be a simple task. There is the matter of finding another country that will take those detainees who can be released beyond our borders. There is the matter of prosecuting the remaining terrorist suspects, where the government has evidence not obtained by torture. There is the matter of deciding whether they can be prosecuted in U.S. civil courts or in military tribunals. Then there is the problem of finding a more permanent prison on U.S. soil for those who cannot be deported or tried.

There are two schools of thought on terrorism.  Conservatives by and large see terrorism as an act of war, while liberals see it as a criminal act.  If we're going to prosecute terrorists as criminals, that's great, but first should we let them all go and wait for them to enter our country willingly?  Isn't it a jurisdictional issue to seize them on a foreign battlefield and try them in American courts on American soil?

Then there's that word:  torture.  I can think of few words so overused and loosely re-defined to encompass practices which a great many legally-minded people think do not go too far.  Often, I hear pundits use the word, presumably because it feels like torture to them.  Never mind the legal definitions.

At least the author touches on the obvious elephant in the room, even if the question isn't explicitly asked:  If the Bush administration did indeed torture these individuals with newfound rights, how can we prosecute them with evidence obtained under what was once called "torture".  Legal scholars refer to such evidence as "fruit of the poison tree."

Finally, the last line of the above paragraph stuns me with irony:  The author seems to acknowledge the "need" to stick some of these terrorists in a hole in the ground and provide them free food and medical care for the rest of their lives, even though he or she has been advocating for how wrong it is for Camp X-Ray Delta to exist.  Sorry, which is it?

At the time of this post, there are three comments.  Two are reasoned, factual arguments against the premise of the editorial, but then there's this:

The continued existence of a facility like Guantanamo testifies to how afraid many Americans have become of trusting their own constitution, or of respecting their treaty obligations in the Geneva Conventions. Fear is becoming a fundamental "value."

Like I said, there's a large number of people who like to throw the word "torture" around casually.  About the same number seem to cite the Geneva Conventions without actually knowing what it has to say about enemy combatants that don't distinguish themselves from the civilian populace (such as fighting in civilian clothing, wearing no insignia to identify them as soldiers of a military force, not carrying arms openly, etc).  Scholars accept that such individuals have the right to be shot on sight.