SCOTUS, Security and Civil Rights

Jun 12, 2008 3:40pm

What’s fascinating about today’s sharply divided U.S. Supreme Court ruling on GITMO detentions is the extent to which the court’s debate mirrors the same tensions between civil rights and terrorism protection that exist in society more broadly.

The difference is that, in public attitudes, terrorism concerns more often have trumped.

In the most recent data, from a Pew poll in February, more Americans said the government had “not gone far enough to adequately protect the country” from terrorism (47 percent) than said it had “gone too far in restricting the average person’s civil liberties” (36 percent). Similarly, in one of our ABC/Post polls on this, from back in 2006, 42 percent said the government was insufficiently protecting civil rights; 56 percent said it was doing the right amount, or even too much.

This doesn’t mean people don’t value their rights; it means many think those rights include the ability to get through the day without being randomly murdered by terrorists, and that they’re willing to give that right its due, in balance with others. Indeed, in another survey we did in late ’06, two-thirds said that in investigating terrorism, federal agencies were intruding on some Americans’ privacy rights. Crucially, however, just over half of those who perceived such intrusions also said they were justified.

There were, on both questions, deep partisan and ideological splits, not unlike those divisions we can see in the court's ruling today.

It’d be good soon to refresh these data; the competing demands for security rights, if you will, vs. civil rights, are subject to a number of variables. The level of threat is one; the government’s sensitivity in maintaining a balance among competing rights is another. In public sentiment, encroaching upon rights as minimally as possible to achieve a crucial end is one thing; trampling them unnecessarily can be quite another.

That’s the overview; then there’s the specific matter of the GITMO detainees and their rights to redress in court. The most recent data point is a somewhat tangential one: In the Pew poll in February, 52 percent of Americans thought government policies toward GITMO detainees were fair; 33 percent, unfair. (The rest had no opinion.)

More directly, in a CNN poll back in September 2006, 63 percent favored the use of military tribunals for such prisoners, without the right to appeal their detention in civilian courts. (That was similar to results we got as far back as 2001 and 2002.) CBS in 2006 asked a more pointed question, contrasting an "open criminal court with a jury" vs. a "closed military court," and got a 49-46 percent split. But in a Los Angeles Times poll, also in 2006, just 8 percent said GITMO detainees should have the same rights as U.S. citizens in civilian courts, and just 27 percent said they should have the same rights given U.S. service members in military courts. Sixty-one percent instead said they should get just "some rights" afforded to U.S. military personnel, or, remarkably, "no rights" at all. Such is the popularity of a suspected terrorist.

The Supreme Court, of course, uses different standards in gauging these issues, and today came to a different conclusion. Again what’s so interesting is the extent to which its 5-4 decision, and the sharply worded dissent, reflect the same debate and divisions that exist in the country at large.

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