Abu Ghraib and Gitmo
Eugene Volokh makes a compelling argument that, despite the opposite seeming obvious, it is quite likely that the Abu Ghraib scandal will strengthen the administration’s case for maintaining the status quo in Gauntanamo.
In this respect, the recent prisoner abuse scandal, shocking as it may be, in considerable measure supports the government’s argument. The abuse was investigated by the military. The press got its hand on it. The Executive Branch seems to be willing to try to correct it, and the public and Congress seem to be pressuring the Executive to do so. Among other things, this is happening precisely because prisoner abuse is so broadly condemned, and seen as so unnecessary (at least in situations such as this one) to military success.
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So to the Justices, I think this will be a matter of comparative institutional effectiveness: The question wouldn’t be whether the military / executive / congressional / public pressure remedies are perfect or even very good, but rather whether the Justices think adding the civilian judicial remedies would make things better. I suspect the Justices would say, even (or perhaps especially) in a case like this one — or in the Guantanamo detentions, where the concern is chiefly detention of the wrong people rather than abuse of the detainees — that it’s better for the civilian courts to stay out. (My guess is also that even those Justices who endorse judicial control over the conditions of confinement in civilian prisons aren’t terribly thrilled by the way that control process works. While they wouldn’t abandon it, its track record isn’t going to make them excited about extending the process into a zone where it has never been applied.)
I’ve given up predicting what courts will do but this sounds plausible.
