Supreme Court Holds Guantanamo a Valid Terry Stop

by Lindsey Simon and Sean Neahusan

The United State Supreme Court issued its opinion today in Boumediene v. Bush, the controversial case that challenged the constitutionality of the Guantanamo Bay detention camps. In a shocking move, the Court upheld the constitutionality of the camps, not under the habeas corpus theory argued by the government, but instead on the grounds that detention at Guantanamo Bay amounted to a mere Terry stop.

In his plurality opinion Justice Antonin Scalia wrote that neither the indefinite detentions, denial of access to legal counsel, prolonged isolations nor water boarding at Guantanamo elevated the seizures above the

level of a lesser-intrusive

contact first described in Terry v. Ohio. Thus the government need only show the presence of “specific particularly facts that support a reasonable belief that criminal activity was afoot” in order to justify the detentions. “Plainly put,” wrote the plurality, “Guantanamo is totally reasonable.”

Justice Scalia’s opinion also hinted that the plurality didn’t even believe the inquiry reached the issue of reasonableness stating, “The government may have conceded that this was a detention, but we’re not even sure about that. The plaintiffs in this case were certainly free to leave the encounter. Heck, I’m pretty sure all you need to get out of Cuba is a bathtub with a makeshift sail. Doesn’t anyone remember Elian Gonzalez? But more importantly, why would anyone want to leave? I’ve seen Dirty Dancing: Havana Nights at least a dozen times. Cuba looks awesome!”

Justice Clarence Thomas concurred in the result, but wrote: “The text of the Constitution is conspicuously silent on the issue of Islamofacist terrorists kept at a U.S. military base in Cuba. Ergo, the Court has no business hearing this case.”

Many view this decision to be the pièce de résistance in the Court’s long and slow attack on the Fourth Amendment. Justice Anthony Kennedy took a candid approach in his concurrence when he stated, “Come on, this can’t be a surprise. We said forcing a woman to crap in a trashcan was reasonable!” See United States v. Montoya De Hernandez, 473 U.S. 531 (1985).

The response from the dissenting justices was stark, pessimistic and unprecedented. In her dissent Justice Ginsberg penned a letter to former Justice Sandra Day O’Connor: “Dear Sandy, are you sure you don’t want to come back? This place is going to hell in a hand basket. Let me know if you change your mind. I’ve got connections; I can make sure an opening comes up. I know people. —Ruth.”

Likewise, Justice John Paul Stevens didn’t write a dissent so much as a directive to his clerks. “I need a memo ASAP on the definition of ‘during good behavior’ in Article III section 1. Specifically focus in on whether a justice who is cryogenically frozen can satisfy that requirement. Those bastards think they can beat me by waiting for me to die, do they? I’ll show them. P.S., call Ted Williams’s family.”

The most telling dissent came from Justices Breyer and Souter, who in a joint opinion stated simply, “Screw you guys, we’re moving to Canada.”