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The Supreme Court's Guantanamo Ruling: What Does It Mean?
Those who cherish the United States' historical adherence to the rule of law -- myself included -- were delighted to hear that the US Supreme Court ruled on Thursday, in the case of Boumediene v. Bush (PDF), that the prisoners at Guantánamo "have the constitutional right to habeas corpus," enabling them to challenge the basis of their detention, under the terms of the 800-year old "Great Writ" of habeas corpus, which prohibits the suspension of prisoners' rights to challenge the basis of their detention except in "cases of rebellion or invasion."
That this decision was required at all was remarkable, as it was almost four years ago, on 29 June 2004, that the Supreme Court ruled, in the case of Rasul v. Bush, that Guantánamo -- chosen as a base for the prison because it was presumed to be beyond the reach of the US courts -- was "in every practical respect a United States territory," and that the prisoners therefore had habeas corpus rights, enabling the prisoners to challenge the basis of their detention.
The difference between then and now is that, in Rasul v.Bush, the Supreme Court ruled only that the prisoners had statutory habeas rights, and that, following the ruling, the executive responded in two ways that completely undermined the Supreme Court's verdict.
The first of these -- as lawyers began applying to visit prisoners to establish habeas cases -- was the establishment of Combatant Status Review Tribunals (CSRTs) at Guantánamo, which were set up, ostensibly, to review the prisoners' designation as "enemy combatants," who could be held without charge or trial. In reality, they were a lamentable replacement for a valid judicial challenge. Although the prisoners were allowed to present their own version of the events that led up to their capture, they were not allowed legal representation, and were subjected to secret evidence that they were unable to see or challenge.
Last June, Lt. Col. Stephen Abraham, a veteran of US intelligence, who worked on the CSRTs, delivered a damning verdict on their legitimacy, condemning them as the administrative equivalent of show trials, reliant upon generalized and often "generic" evidence, and designed to rubber-stamp the prisoners' prior designation as "enemy combatants." Filed as an affidavit in Al Odah v. United States, one of the cases consolidated with Boumediene, Lt. Col. Abraham's testimony was regarded, by legal experts, as the trigger that spurred the Supreme Court, which had rejected an appeal on behalf of the prisoners in April 2007, to reverse its decision and to agree to hear the cases. The reversal was so rare that it had last taken place 60 years before.
The executive's second response to Rasul was to remove the prisoners' statutory rights, persuading the third strand of the American power base -- the politicians in Congress -- to pass two hideously flawed pieces of legislation: the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006.
The Detainee Treatment Act (DTA), which originated as an anti-torture bill conceived by Senator John McCain, was hijacked by the executive, who managed to get an amendment passed that removed the prisoners' habeas rights, although the legislation was so shoddy that it was not entirely clear whether the prisoners had been stripped of their rights entirely, or whether pending cases would still be considered. What was clear, however, was that the DTA limited any review of the prisoners' cases to the DC Circuit Court (rather than the Supreme Court), preventing any independent fact-finding to challenge the substance of the administration's allegations, and mandating the judges to rule only on whether or not the CSRTs had followed their own rules, and whether or not those rules were valid.
In the fall of 2006, following a second momentous decision in the Supreme Court, in Hamdan v. Rumsfeld, in which the justices ruled that the proposed trials by Military Commission for those held at Guantánamo (which also relied on the use of secret evidence) were illegal under domestic and international law, the executive persuaded Congress to pass the Military Commissions Act (MCA), which reinstated the Military Commissions and also removed any lingering doubts about the prisoners' habeas rights, stating, explicitly, "No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." In a further attempt to stifle dissent, the MCA defined an "enemy combatant" as someone who has either engaged in or supported hostilities against the US, or "has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the secretary of defense."
The wheels of justice revolve so slowly that it has taken over a year and a half since the passing of the MCA for the Supreme Court to stamp its authority on the conceits of both the executive and Congress, and cynics can argue that all of this could have been avoided if the Supreme Court had insisted on the prisoners' Constitutional habeas rights in June 2004. Nevertheless, Thursday's ruling -- however belatedly -- comprehensively demolishes the habeas-stripping provisions of both the DTA and the MCA.
In no uncertain terms, Justice Anthony Kennedy, delivering the Court's majority opinion, ruled that the "procedures for review of the detainees' status" in the DTA "are not an adequate and effective substitute for habeas corpus," and that therefore the habeas-stripping component of the MCA "operates as an unconstitutional suspension of the writ." These judgments, which should soundly embarrass the nations' politicians, could hardly be more clear, and although it is uncertain how the administration will respond in its dying days, it seems unlikely that the executive will be able to prevent a slew of habeas cases, which have, effectively, been held in a kind of legal gridlock for years, from progressing to court.
The only other obvious recourse, which will also help the prisoners to escape from the intolerable legal limbo in which they have been held for up to six and a half years, is that the administration will suddenly develop a previously undreamt-of diplomatic dexterity, and will make arrangements for the release of a large number of the 273 remaining prisoners without having to endure the acute embarrassment of justifying, in a proper courtroom, the hearsay, the innuendo, the generic information masquerading as evidence, and the fruits of torture, coercion and bribery that it has used to imprison these men for so many years.
Since 9/11, sadly, justice in the US has moved so slowly that on occasion it has appeared to be dead, but Thursday's verdict is a resounding triumph for the importance of the law as a check on unfettered executive power and the caprice of politicians. As Justice Kennedy stated in his opinion, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." He added, "To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this court, say 'what the law is,'" a quote from an 1803 ruling, in which the Supreme Court explained its right to review acts of Congress, which, of course, reinforces the supremacy of the separation of powers that lies at the heart of the United States Constitution.
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It means we won't be as safe
It might also mean a type of "Her Majesty's Search Warrant" used to search any dwelling, car, boat, etc. based on suspicion of "drug" related crime will be challenged.
Some of the Gitmo defendants were even paid for I recall, turned in for a sum of money in very poor surroundings. Doesn't that sound like slavery? Nearby in the Guantanamo Province on Cape Maisi is where the infamous American "last slaver" "Wanderer" sank in the fruit trade not too long after the American Civil War. It was boarded by a British Navy officer of the slavery blockade off Africa in 1858, and thought too elegant a yacht to be involved in that terrible illegal trade. It collected many people to be sold into slavery and landed what was left of their numbers on Jekyll Island, Georgia. It would later sail under Confederate and Union service. It was built in the Captain Brewster Hawkins shipyard in Setauket, NY and sold to a Louisiana cotton merchant's broker.
Without this ruling, perhaps law officers would be searching through the pillow on your bed, based on anonymous suspicion instead of the rules of evidence, a warrant, which I understand is some countries requires a district attorney to be present when served.
The Supreme Court's Guantanamo Ruling: What Does It Mean?
It means we have four idiots who will still shred the Constitution, and stain it with every opinion they write.
This ruling should have been
like Nixon vs USA
9/0
Not only is the Supreme Court's ruling on Guantanamo important, but coupled with its ruling about the right to habeas for two prisoners in Iraq, it has far broader implications for prisoners held indefinitely by the US around the world. See this story:
http://amlawdaily.typepad.com/amlawdaily/2008/06/lawyers-conside.html
Our country has welcomed people from many nations with only one condition: Believe in Liberty and Freedom. Now we have people in some of our highest offices who's ancestors just got here around the turn of the last history. These people want to make America like the old countries their Grand Parents and great grand parents came from. Italy produced Mussolini, and now Italian American community has produced Rudolph Guiliani, Samuel Alito, and Anton Scalia, the apple does not fall too far from the tree people. They all have the best intentions for America, but their words and actions make me wonder if they trully believe in Liberty and Freedom which are the cornerstones of America.
What does it mean? It means that a bunch of terrorist have the green light to tie-up our judicial system with an endless stream of legal petitions based on cavil arguments, the sole intent of which is to so overwhelm the courts that the resulting backlog created in other cases forces the administration to consider letting them go, after having questioned the wisdom of capturing them in the first place. At which point they will return to the battlefield and continue to kill Americans, as others have already done.
an endless stream of legal petitions?
Spare us all that hyperbole. Like Scalia's off the mark dissent it ignores the practical impact of this decision.
Each of the 270 Gitmo inhabitants get one crack at showing they are detained without cause. They do so with access to the evidence against them. If the government and military have reasonable cause to detain and bring to trial those suits will be rapidly and easily resolved.
If only one detainee shows that they are held on the word of bounty-hunting tribesmen seeking profit, without proof of their intent or prior action defining them as a terrorist or combatant, and is thus released, that makes this worthwhile.
Assign blame where it belongs - to the Bush administration for trying to have all the cake and eat it too, twice over, despite prior rulings and legal rebuffs to the contrary.
Doing things the right and hard way is the American Way.
I am not aware of any former detainees returning to the battlefield and killing Americans. I have heard of one or more becoming suicide bombers, but not that they killed Americans. If I am mistaken, please post more info.
" It means that a bunch of terrorist have the green light to tie-up our judicial system with an endless stream of legal petitions.."
Exactly*. And that a bunch of innocent people have the same.
*Although "endless" is completely unwarranted hyperbole.
The supreme court has ALMOST gotten back my respect. I still wonder why this took so long.
Thank you Mr. Worthington for breaking down a complex set of circumstances in a very clear way. Many of us had a feeling as to unfairness and illegality of the process created by Bush, but you made it resolutely clear for us.
Mr W, thank you again for your efforts.
(repost below)
The NYTimes editorial on the subject is plainspeak that cuts to the heart of the matter:
"On Thursday, the court turned back the most recent effort to subvert justice with a stirring defense of habeas corpus, the right of anyone being held by the government to challenge his confinement before a judge. "
snip
"The right of habeas corpus is so central to the American legal system that it has its own clause in the Constitution: it cannot be suspended except "when in cases of rebellion or invasion the public safety may require it." "
snip
" Now, by a 5-to-4 vote, the court has affirmed the detainees" habeas rights. The majority, in an opinion by Justice Anthony Kennedy, ruled that the Military Commissions Act violates the Suspension Clause, by eliminating habeas corpus although the requirements of the Constitution " invasion or rebellion " do not exist. "
http://www.nytimes.com/2008/06/13/opinion/13fri1.html?_r=1&hp&oref=slogin
This decision will be the straw that breaks the camel's back. When the Supreme Court's left-leaning Justices decide in such a way that may have hard-core terrorists being turned loose due to an unwillingness, on the Government's part, to reveal classified information, that's the end! We have now officially been required to commit suicide rather than defend ourselves!
Semper fi
Semper faithful but never awake.
Over the past 20 years America has had around half a dozen vehicles and 4-5 buildings hit by terrorists. If we publicly surrender to them, it'll be about 5 centuries before they make it to Las Vegas.
Ya mean Constitution-leaning?
Those Founding Fathers indeed WERE the libruls of the day.
Hard-core terrorists? PROVE IT!
If you can, I'll be the first to push them out of a USMC chopper. Until then, secret trials using secret evidence are NOT what we're fighting for.
Semper fi, really? Faithful to what? Look at your own words. MAY HAVE hard-core terrorists. MAY HAVE!!! Remember what gives you the right to write those words at all, without being thrown in prison. The freedoms you obviously regard as your birth right were hard won, and will be lost if we fall prey to the cover ups of this administation. They may be watching you, berettasskeeter, and could put you away at any time, with the evidence against you sealed away as 'classified'. Wouldn't you be sad them, rotting in a cage, losing your mind. Is your mind and soul so fractured that you've lost the ability to see the obvious. Semper fi, indeed.
No, we have officially been required to abide by the rule of law and the principles upon which this nation was founded. To do otherwise would constitute the metaphoric suicide of the nation, which would no longer be governed by law, but by terrified, short-sighted, power-hungry men. Semper fi to the Constitution, not the likes of Scalia and Yoo and their reductive view of our history and Constitution.
"Left-leaning Justices"? Kennedy? Either you're joking or you're ignorant of his jurisprudence.
Apparently neither you nor Scalia have contemplated the possibility that Guantanamo detainees who have been released after years of unjustified and unjustifiable detention and TORTURE were radicalized by their treatment and turned into "hard-core terrorists." I expect you would be, too.
Thoses who do not know history are doomed to repeat it. Even a traitor is given a trail before he is executed. Our Founding Fathers would not have given trails in the Engilsh courts they would have been held indefinitely had they been caputured and eventually executed.
We are a nation of laws, not a nation of man (Monarchy). George W. Bush is the President sworn in to UPHOLD the LAWS of the LAND, not to make them up as he see fit (Monarchy)
Finally the traitors will go down in history as traitors to the constitution.
Justice Roberts argument of dissent holds no weight for "The War on Terror" is a complete sham. It should not be called a war at all, but an invasion and occupation. It is illegal, unjust and a tragic commentary on the fascistic swing this country has taken under this engorged corporatist kleptocracy
To paraphrase the dissent: Until our ideology reins supreme, the Constitution is suspended.
This poses a major dilemma for those fighting the imaginary 'war on terra'. They'd finally nailed Saddam's chauffeur, and they were just getting warmed up. Could bin Laden's tailor have been far behind?
What'll they do now? All may be lost...
You're right Amused,
There were never any acts of Muslim terrorism in U.S, Afghanistan, Pakistan,Egypt, Algeria, Saudi Arabia, India, Philippines, Indonesia, Bali, Israel, Britain, Spain, France, Iraq Russia and China etc
All the airline hijackings, beheadings, kidnappings, assassinations, roadside bombing, suicide bombing, bombing of trains, buses, airports, markets homes, schools never happened.
The only thing ANY of the Gitmo prisoners ( all men of military age--most not A-stanis)are guilty of is going to A-stan and P-stan to catch butterflies and write inspiring poetry in Rumi style.
Obviously, the Supreme Court concurs with this altered reality stance.
From this point on there's no such thing as prisoners of war.
EVERY terrorist would be now be known as "allegedly accused"
AND entitled to traffic court and bond release.
You tell 'em, Sparky.
... and alleged witches were burned in Salem, and Jesus was crucified -- and let's not overlook Idi Amin.
All of which, I suppose, obviates the fact that -- after being struck by only 19 criminal zealots, funded and 'operated' by, maybe, a whole half-dozen well-connected extremists -- we invaded and occupied an uninvolved sovereign nation, began killing Iraqis with abandon, started BUYING the RESULTING 'insurgents' from warlords, themselves settling decades-old grudges, and have been 'detaining' (but not CHARGING) them for years.
"Prisoners of war"?
You probably missed it. It was in all the papers... there ARE no "prisoners of war", Cletus -- only "illegal enemy combatants", some as young as 11 years of age. If we keep 'em locked up long enough in our own gulag, maybe -- someday -- they can be "legal enemy combatants".
Always double-check the connection points before soldering.
By the way... YOU look kind of suspicious. Do you have papers...?
We could maximize our protection from the terrorist if we all realized the constitution is too dangerous any more. Didnt the founders realize that all those impediments to government police powers would allow all sorts of criminals and terrorists to get away with things. In a reality based country we would take no chances and execute all suspected of terrorist or violent tendencies. Absolute safety at any cost.
It should be a fun day in Jon Yoo's Constitutional Law class at Berkeley when he has to cover this decision, hmm? Loved McCain's erudite (choke) analysis of the opinion.
Go Bears. Beat the Fascists.
McCain has absolute, unmittigated gaul to make a statement for or against any supreme court decision. He simply does not have the mental capacity nor the backround to publically express an opinion on an issue of this magnitude. He should humble his ego.
The very idea of Yoo teaching ConLaw is appalling. If he had taken Scalia's course in ConLaw at U. of C., Scalia would would have flunked him. I trust that Scalia would even have flunked himself in those days.
I visited torture chambers in Regensberg and Prague last month, photographing the torture devices and examining the solitary confinement cells. Our principles have dictated that it is more important that a guilty man go free than an innocent man be punished. The fear of terror attacks has caused many to abandon that principle. The ban against torture likewise is a cornerstone of our judicial system and our civilization. Justice Kennedy points out that these principles have been enshrined in our constitutional system of government. It is during war that our principles are tested. Justice Scalia argues that we are "at war with radical Islam." I would argue that we are at war with all radical religions and even separatist movements and various leftist movements. But declaring war against drugs, a religion, a tactic, or an idea is ludicrous, in my opinion. The people who use terrorism are testing us. Will we abandon our principles? I hope not. Thanks for your work. Shortcuts are self-defeating and only encourages more blowback.
Torturing prisoners is wrong.
Giving foreign prisoners of war civil courts Constitutional guarantees is idiotic .
The world agreed with that.
The world has Hague and Geneva conventions--- TO PROTECT prisoners of war FROM criminal court proceedures, NOT encourage it!!!!
So then you would agree that Saudi Arabian prisoners of war should go to Saudi to be tried by their criminal courts. Right?
OK, fine. They will be tortured and beheaded ASAP due to Saudi lawful criminal procedure.
THINK!
What if WE the Citizens Safety Committee decide that YOU are a foreign terrorist If you try to say you are not we will gag you. You have no right to even have that determination reviewed by someone not on OUR committee. Be careful about what political views you express. We are watching you.
I guess you missed the Bush memo that the Geneva conventions were NOT TO APPLY to his detainees. And no doubt he has a signing statement that the Hague no longer has jurisdiction over war criminals, since if it did, he would be in grave danger.
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