Low Points

Judge Halts Plan To Transfer Guantanamo Detainee - Federal Judge Gladys Kessler tells the Bush administration they can not send Mohammed Rahman home to Tunisia from his cell in Guantanamo until his habeus corpus petition is resolved. Rahman has been convicted of terrorism in abstentia in Tunisia and his lawyers say he will be killed or tortured once he gets there. This is probably not a low point for Judge Kessler. She may be wrong on the facts (what would happen to Rahman in Tunisia) or even the law (does a delay for a decision on a habeus writ take precedence over an otherwise valid extradition). She may be ruling in favor of a murderous thug and throwing another roadblock in the path of shutting down the US prison at Guantanamo. Despite all these problems, Judge Kessler gets at least one kudo, she isn't kowtowing to the administration every time they say the magic words - "state secrets".

The low point award goes to Mohammed Rahman, a man who is actually struggling to stay in Guantanamo - can Hank Williams sing in Arabic?

Justices Turn Aside Case of Man Accusing C.I.A. on Torture - The Supreme Court will not hear an appeal by Khaled el-Masri, a German who says he was abducted and tortured by the C.I.A. in a case of mistaken identity. This leaves standing a lower court decision in which the administration did win by saying the magic words, "state secrets". el-Masri seems to be a regular citizen caught in a Kafkaesque nightmare. The Supreme Court decision won't stop a German investigation into the same case that is heading towards a diplomatic crises with its warrants for C.I.A. officials. The Supreme Court has passed up an opportunity to visit the entire C.I.A. torture program, including the legal justifications offered by John Yoo and Steven Bradbury, a program that seems to produce questionable information, expose America's own soldiers to increased risk of torture, inflame international relations and create working level snafus with foreign law enforcement agencies who can't cooperate with the US lest they expose prisoners to torture.

The low point here goes to Justice Roberts, who just watched from the batter's box as strike two went across the middle of the plate. C.I.A. torture goes to the heart of the constitutional separation of powers. The administration goes opinion shopping, finds Yoo and Bradbury, comes up with a justification for terror so secret that it can't be revealed and uses it to break more laws than we could list in a lifetime. If Bush arrests Obama for loitering and ships him to Guantanamo can the administration avoid any judicial constraint just by uttering those magic words, "state secret". It's time to start drawing some lines, torture and warrantless surveillance are a good place to start.