That it was a brave and right choice may not be enough to rescue this case if and when it ever comes to a trial. (The case may still be appealed to the full Seventh Circuit or to the Supreme Court.) It will be a challenge for the plaintiffs to show what they say they can prove. But the case, even as it stands today, should suffice to remind the rest of us that this isn't a case about foreigners at Guantanamo but a case about a Navy veteran caught up in a series of errors in the field. This case isn't about the rights of an enemy soldier detained on a battlefield with a weapon in his hand. It's about the rights of brave whistle-blowers who were tortured by bureaucratic mistake.
If you don't believe the war on terror is migrating into your backyard, this case is confirmation. If you don't think the state-secrets doctrine will be trotted out to protect the government's abuse of innocent Americans as well as foreign prisoners, this case proves it. If you worry that "turning the page" means always finding more of the same, this case makes that plain. A country in which nobody is ever really responsible is a country in which nobody is ever truly safe.
For all the talk about judges needing to be immune to empathy, it seems pretty clear that the character of the plaintiffs in these cases matter. Of the two cases that were allowed to go forward, both involve Americans not ultimately found to have been involved in terrorism. The third, involving Jose Padilla, who was convicted of terrorism conspiracy charges, was blocked (the ACLU is appealing). But when it comes to constitutional rights, it shouldn't matter whether or not the individual is sympathetic or not, even though it clearly does. There's nothing in the Constitution that says being a terrible person entitles the government to ignore your fundamental rights.
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