The Supreme Court actually went against the Bush administration this week when it voted 5 to 4 that the detainees at Guantanamo Bay have the right to their day in court. Now it has become a campaign issue with John McCain disagreeing with the decision and Barack Obama agreeing.

The court ruling was based on the Amendment 6 to the Constitution- the Right to Speedy Trial, Confrontation of Witnesses. Ratified 12/15/1791.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” Not a typo, that is how they spelled defense in 1791.

The majority opinion was written by Justice Anthony M. Kennedy in which he took the Bush administration to task for the Presidents position that because he is the commander in chief and we are engaged in a war, he has the right to incarcerate suspected terrorists for an as long as he thinks it is necessary without giving them a trial. The dissenting judges feel that this will cause problems for national security.

John McCain has been distancing himself from the administration, but in this case it is just to opposite. To say he disagrees with the Supreme Court decision is putting it mildly. McCain called it “one of the worst decisions in the history of this country.” Barack Obama, of course takes the opposite opinion.

Just how much impact this will have on the election depends on how many of the 250 to 270 detainees take their case to court and what the outcome of those trials is. The founding fathers surely could not foresee an event like 9/11 ever happening and they were very ambiguous in the wording of the Constitution. The amendment begins “In all criminal prosecutions” so one of the questions now is did the administration plan to bring these people to trial? Or just hold them until they were no longer considered a danger?

If this is the case and they were just going to be held, would that make them prisoners or war and in that case subject to the Geneva Conventions of 1949 which focused on the rights of civilians taken prisoner in time of war and it forbids:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Is holding the suspected terrorists for 4 years to be considered passing sentence on them in violation of the fourth provision? The United States image around the world has taken a beating from the interrogation methods used at Guantanamo. This is going to be one of the most watched issues of the year, not only here but world wide.

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