Concurrence

Most of the attention today will focus on the majority opinion in Boumediene, with its stirring endorsement of the ACLU principle that the law can protect liberty and security both. But Justice Souter’s concurring opinion also deserves some attention. In his quietly eloquent way, Justice Souter takes issue with the dissenter’s view of the case as an intrusion by the Court into the political arena, or as a premature condemnation of the satire-defying Combat Status Review Tribunal system well on its way to someday providing someone with an adequate forum. Justice Souter takes on these arguments directly, but he also acknowledges that such discussion in some sense misses the point:

Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantánamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.

It is easy to forget the people behind the cases. As much as this case is about the historic importance of the Great Writ, or the international law of war, it is also a case about hundreds of people imprisoned without charge for years in an island prison thousands of miles from their homes. Six years is too long to wait for a day in court. Thankfully, today’s decisions may bring that day into view.