Today’s 2-1 decision upholding the Military Commissions Act represents a misguided endorsement of the Bush Administration’s view that Guantánamo is a place without law and the Guantánamo detainees are people without rights. Unfortunately, the decision is likely to be seen by the Bush Administration as a green light to continue its policy of arbitrary and indefinite detention.
The war on terror is not an excuse to abandon our commitment to fundamental fairness. The burden is now squarely on Congress to restore the right to meaningful judicial review that the Military Commissions Act repealed. If Congress does not fulfill its responsibility, the Supreme Court will be forced to step in once again and correct the balance.