Bob Barr thinks so.  In his Washington Times op-ed, the former federal prosecutor, Georgia Congressman and Libertarian Presidential candidate, labels Scalia the “high court curmudgeon” for his dissent from the Supreme Court’s order giving Troy Davis to have an evidentiary hearing on his substantial evidence of innocence.

Scalia believes, simply, that the Constitution doesn’t protect the innocent from being executed.  Barr believes that it does.

“The Constitution of the United States was adopted in 1787; the Bill of Rights four years later in 1791. Apparently for Justice Scalia, these past 218 years have not sufficed to “clearly establish” that federal law is based on the premise that only the guilty are to be executed.”

Bob Barr was instrumental in the passage of the Anti-terrorism and Effective Death Penalty Act (AEDPA) back in 1996, and has clearly been perturbed by the way that law has been interpreted to prevent what justice plainly requires in this case:

“… a full hearing at which the witnesses Davis believes will show his actual innocence are allowed to testify.” And at which “… the state of Georgia will have full opportunity to rebut that testimony.”

The “pinched and erroneous” interpretations of AEDPA by cantankerous old judges like Scalia ignore the fundamental basis for law and justice, which is to punish the guilty and protect the innocent.

The Obama administration is reportedly close to finalizing the outlines of a new preventative detention regime likely to be crafted along the lines proposed by Matthew Waxman in a paper released last week by the Brookings Institute.

Waxman’s paper tries to reconcile the supposed need for some form of administrative detention without trial with the Supreme Court’s Boumediene v Bush decision affirming the habeas rights of Guantanamo detainees and he proposes introducing legislation to create a new category of administrative detention subject to periodic judicial review.

An increasingly familiar pattern is once again being repeated. The administration ‘discovers’ that the issues it is facing are tougher than it had anticipated, sees some merit in the approach adopted by the Bush administration, promises to make some minor adjustments to preexisting conditions, and finally undertakes to implement this revised policy with a sensitivity the previous administration lacked.

However, such changes amount to little more than putting lipstick on a pig. Closing Guantanamo was always going to require taking some unpopular and morally courageous decisions but the President who declared in his inaugural address that he rejected the false choice between our safety and our ideals has sadly gone AWOL.

To codify administrative detention would be to perpetuate a system that has to date incarcerated more innocent people than it has men of violence on the basis of half-truths and innuendo.

The ordered release last week of Syrian-born detainee Abd Al Rahim Abdul Rassak al Janko provided further proof of the flimsy grounds on which many of the detainees at Guantanamo have and continue to be held.

Al Janko freely admitted staying for five days at a guest house run by Al Qaeda in 2000 and for a further 18 days at an Al Qaeda-run camp as a refugee making his way towards Europe. However, Al Qaeda militants suspected Al Janko of being a US spy and he was detained for three months and tortured until he admitted to these charges.

Al Janko was then handed over to the Taliban and imprisoned for a further 18 months. Having nowhere else to go, he remained behind in the prison after it was abandoned by the Taliban and was discovered there by US forces when they occupied Kandahar in the fall of 2001.

US soldiers also found a video which showed Al Janko being tortured by members of Al Qaeda. In true Kafkaesque style the video has been used by government lawyers as proof of his association with the group.

The Al Janko case demonstrates that arguments that the Obama administration will do a better job of separating the wheat from the chaff than their predecessors hold little water. In his scathing dismissal of the case, District Court Judge Richard Leon described administration lawyers as “taking a position that defies common sense” and it should be noted that this administration has fought Al Janko’s release tenaciously through the courts despite its manifest flaws.

We should not ignore the fact that it took a real court to make an effective determination about Al Janko’s status, and that this administration flunked that same test. Creating a legal framework for indefinite detention is a profound mistake. Since 1783 there has only been one standard in the United States for incarceration and that is conviction in a court of law.

Twice before in our history this standard has been ignored in times of crisis – during the Civil War and during World War II. The suspension of habeas corpus and the internment of Japanese Americans left a lasting stain on two of America’s most successful presidencies. The detention regime created at Guantanamo by President Bush added a third to a rather less illustrious presidency.

It is not too late to prevent the Obama administration repeating this mistake. Amnesty International USA has launched an online action campaign to petition President Obama to reconsider. We need your help to prompt a change of direction before fear mongering once again overcomes the angels of our better nature. Please visit our site today and add your voice to the thousands already raised in protest.

Today, on its last day of work before summer vacation, the U.S. Supreme Court postponed its review of Troy Anthony Davis’ case until September.  As Amnesty International has repeatedly pointed out, Davis was sentenced to death for the 1989 shooting of a police officer in Savannah in the absence of any physical evidence against him and based solely on the testimony of 9 witnesses.  Since the trial, seven of the nine witnesses have recanted their statements or have changed them.  Moreover, nine affidavits exist that implicate one of the remaining two witnesses in the murder.   Doubts about the fairness of the verdict have arisen even among the jurors in Troy’s case who, eighteen years ago, unanimously sentenced Davis to death.

The Court’s decision (or non-decision) comes amidst a groundswell of local activism in Savannah, where citizens are demanding that the new District Attorney, Larry Chisolm, reopen the case due to the major doubts about Troy Davis’ responsibility for the crime. Today’s non-decision is also significant, in that it may show that at least some Supreme Court Justices are concerned about whether strong claims of innocence are getting adequate review in our lower courts.

In September, the U.S. Supreme Court could reject Troy’s petition.  Or they could agree to hold a hearing on Troy’s case or remand it to the federal District Court for a new hearing.  This would allow the new evidence available in this case to finally be examined in open court and would signify that fairness, at least in this case, is a priority over “finality”—something immensely important in the case of the death penalty, where mistakes, arbitrariness and bias are all too common.

Earlier today, the Supreme Court heard oral arguments in Bell v. Kelly, a Virginia case that has important implications for death penalty litigation.

The issue in the case is complex.  Under federal law, federal courts are required to give great deference to state court rulings on claims raised in a federal  habeas petition that have already been adjudicated in state courts.  So, a federal court will NOT consider whether the state court’s decision was right or wrong, but only whether it was “unreasonable”. 

But what if the petitioner brings new evidence on a claim to the federal court, evidence the state court never considered?  Does the federal court still have to be deferential, despite the fact that it has more information at its disposal?  Or can it proceed as if the claim is new, and rule on its merits, not just on the reasonableness of the state court’s judgment?

Bell is claiming that a federal court wrongly deferred to a state court’s ruling on his claim of ineffectiveness of counsel.  Bell argues that although his claim was heard by a state court – which denied him relief – the ineffectiveness of counsel claim he raised in the Court of Appeals for the Fourth Circuit was based on new evidence and thus should have decided on the merits.  Instead, the Fourth Circuit – erroneously, Bell contends – deferred to the state court’s original ruling.  Essentially, the new evidence was never a factor.

So, in a somewhat spirited debate, the Supreme Court today faced an important question: 

If the Court rules in favor of Bell, there is a risk, as Justice Alito noted today, that prisoners’ attorneys will simply need to “find some additonal mitigation evidence” to get a review on the mertis.  Yet, if the Court finds this risk to be too great, and rules that the Fourth Circuit was right to defer to the state court’s judgment, there is a risk that legitimate new evidence will never be heard by a federal court.  This, as Justice Souter suggested today, would be “a very clear hole in the law.”  If the Court accepts that this hole exists, it will be more difficult in future cases to have new evidence heard, or to overturn state court judgments that are not clearly unreasonable (even if they might be wrong).