In the Observer today Nick Cohen reports on the effort to bring the Guantanamo and other detainees within the compass of the rule of law:
There are signs that the judges are beginning to resent the limit on their power to insist on proper distinctions. Just before Christmas, judges at the federal appeals court in San Francisco asked a good question. If the Bush administration was free to hold detainees outside the rule of law, was it also free to torture them or summarily execute them? Yes, replied the Government’s lawyer, in theory Guantanamo detainees could be tortured and shot and there would be nothing the American courts could do.
The judges were horrified. This was ‘the first time that the government has announced such an extraordinary set of principles – a position so extreme that it raises the gravest concerns under both American and international law.’ They snubbed the administration and ruled that the US courts could hear claims from the detainees.
The Supreme Court will decide whether the verdict stands.