For years, Guantanamo Bay has illustrated that old imperial aphorism: if you rule the waves, you can waive the rules.

One doubts that the US Supreme Court’s recent decision on Gitmo will change much.

As Delia Lithwick points out in Slate, this is the third time the court has found against the Bush gang’s treatment of Guantanamo inmates.

“You may have noticed,” she says, “that all of these setbacks and rebukes have mostly meant more hot days in orange jumpsuits, more solitary confinement, and ever more plus ça change for the detainees there.”

The court’s finding did, it’s true, push procedures somewhere into the 13th century, asserting that habeas corpus – a key principle of the Magna Carta – cannot be denied to inmates. The US President does not, in other words, possess the powers of a feudal tyrant: those whom he detains have a right to a judicial review of the legality of that detention.

John McCain immediately declared the ruling “one of the worst decisions in the history of this country.”

Think about that for a minute. Does one of the two candidates for the US presidency really consider a ban on arbitrary detention worse than, say, the laws upholding slavery?

It’s not such an arbitrary comparison, either. The hearing in which the Supreme Court declared the unfortunate Dred Scott to be a piece of property rather than a man stands as a rather stark warning about human rights giving way to state power.

The argument against allowing Gitmo inmates any rights whatsoever rests on Bush’s familiar mantra: “But they’re all killers!”

As it turns out, they’re not.

McClatchy News gives the example of Mohammed Akhtiar, an Afghan government supporter detained in Guantanamo after insurgents deliberately leaked false information about him to the Americans.

“An eight-month McClatchy investigation in 11 countries on three continents has found that Akhtiar was one of dozens of men — and, according to several officials, perhaps hundreds — whom the U.S. has wrongfully imprisoned in Afghanistan, Cuba and elsewhere on the basis of flimsy or fabricated evidence, old personal scores or bounty payments.”

That’s why we have these wacky things called ‘trials’, since not every allegation turns out to be true.

Though his Attorney General, Michael Mukasey, has already said that the Supreme Court’s finding will not impact on the procedures due to take place under the sham Military Commissions, Bush is reportedly considering new laws to get around the decision.

Yet, in dealing with the court, time is on his side.

The Guantanamo ruling was not unanimous but a 5-4 decision.

In the minority was a certain Justice Antonin Scalia. In his dissent, Scalia more-or-less accused his colleagues of facilitating murder.

“The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed,” said Scalia. 

If that sounds more like wingnut blogger than a judge, it should be remembered that Scalia, like all the recent court appointees, is a figure of the extreme right, whose disdain for habeas corpus corresponds with an enthusiasm for its feudal antecedents. To put it bluntly, he’s for getting medieval on the detainees. As he famously announced:

“It would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that.”

Think about the Guantanamo ruling again. Of the judges who voted Scalia down, three are older than 70 and one is 88. In other words, we can expect Judge Smack-them-in-the-face to be running the show pretty soon.

The legacy of the Bush administration will be around for decades. If it’s overcome, it will be by political change, not through a court system stacked with Republican ideologues.

Jeff Sparrow is the editor of Overland.

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