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.
Follow Andy Worthington on Twitter: www.twitter.com//GuantanamoAndy
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It was ignored in the first ruling, and it will be ignored again!
The proper steps have been taken, thanks to Dennis Kucinich, but the press is mute, the blogs are mute, and therefore the justified outrage of the American people has no voice. The blatent rape of our constitution is being treated like some minor inconvenience, like DC buisness as usual.(I refuse to attach Mr. Washington's name to that cesspool!) We have access to more communication mediums today than ever before, and we have just watched as Democracy DIED!(Can it be called government of, by, and for the people when over 80% disagree with our direction an nothing changes? NO, it can not!)
We have seen the grand experiment of our founding fathers to it's conclusion, and it has failed.
thats a bit extreme, saying that America has failed, don't you think?
Funny how two people can look at the same situation and see the exact opposite. I would call the Supreme Courts decision a complete departure from the Constitution and an invention of rights that never existed until yesterday.
I think that's why 80% of americans feel like the country is goinng in the wrong direction, I see the judges acting like kings, you see the president acting like a king (we might both be right, by the way) and Congress is just a debating club for millionaires.
But i still don't think America is a failure, just off course.
Do you have any legal education?
Even according to the administation, less than a third of the remaining detainees, ... a small fraction of the original number held, would EVER be tried, as it appears that the reaminder are innocent men, caught through lies, mistaken identity, and in some cases, the vengeance of neighbors and for ill-gotten bounty money.
Bush and Cheney's approach with Gitmo and Black Site prisons was a foolhardy plan from the beginning, that was made of cards, and built on sand. Only a deluded egomaniac would believe it to be founded upon the law.
THANKS to you, Andy, for keeping this abomination & mistreatment of the poor wretches imprisoned in GITMO in front of HuffPo readers. For our rule of law to mean anything it must be applied to the least of us....or the so-called "illegal combatants", most of who never lifted arms against us. The Seton Hall Report on GITMO prisoners should be required reading; http://pap
Whe, hopefully, if there is any justice at all, will see Bush,Cheney, Rummy, the detestable John Yoo, Alberto Gonzales & others who lied & deceived America into war for the profit of a few, stand in the dock to face treason, crimes against humanity charges, & "high crimes and misdemeanor" charges...
The frightful comment by "Justice" Scalia on this decision shows the stakes in the coming election. I believe that, as Roosevelt tried to do, the SCOTUS should expanded to 11 or more Justices to dilute the power of the con "gang of four" Roberts, Thomas, Alito and Scalia, & bring the court back from the brink of Fascism. If we have been betrayed by the Bush/Neocon Regime, we are also betrayed by his SCOTUS .........t
Agreed. Expand the court to 11.
Shame on the Dems for rolling over on Alito and Roberts.
Republicans with 41 can do more than Dems with 59 to push their agenda.
Your link doesn't work.
Looks like Bush is just going to ignore the supreme court.
And you know he'll get away with it. He does what he wants and never has consequences. Maybe after the election he'll finally be arrested for all his crimes.
Got away with it last time, didn't he?
Domestic surveilance, torture, black prisons, extrordinary renditions, each is a High Crime publicly committed. Each should trigger the congress to enact articles of imeachment! But the cowardice, or more likley mafeasance of the congress coupled with our own silence will allow them free reign. The articles have been drawn, but by near universal agreement will sit in committee until irrelevant. Enjoy the fireworks, they are the only meaning left to our independance!
About half the dems are for impeachment. It's the DLC rahm, Pelosi leadership that is playing politics with their sworn duty to uphold the constitution and impeach.
While I AGREE with today's majority opinion that "all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield, [but] over which the United States exercises 'absolute and indefinite' control, may seek a writ of habeas corpus in federal court," I also AGREE with Chief Justice Roberts (and his fellow dissenters) that the Writ can be suspended in time of war, such as the war on terror that we find ourselves involved in right now, and that suspension power belongs to Congress, such as Congress has exercised in this case, "as the Constitution surely allows Congress to [wield]."
Unfortunately if the government can declare a war on 'terror' then they can declare a war on anything and anybody can find themselves locked up indefinitely as 'enemy combatants' with no recourse. And of course, if American can do that to any citizen of any other country then any country can do that to Americans.
True story: I made an off-the-cuff suggestion in one of my classes a couple of months ago, that "maybe we should declare a war on stupidity.
The Constitution does not allow Congress to suspend habeas corpus in time of "war;" the Suspension Clause grants the power in "when in cases of rebellion or invasion the public safety may require it." Rebellion? No. Invasion? We were attacked on 9/11, but to claim we're in a time of invasion is quite a stretch. The idea was that habeas is so essential that it could only be suspended in times of crisis, i.e., the government need not stop and give rebels or invaders a trial while we're fighting them in the streets. Giving the detainees in Gitmo meaningful hearings doesn't threaten us; and it's a pathetic scare tactic to claim it does. Holding them without charges or trial for six years, on the other hand, not only harms us internationally, but undermines our core values.
Well spoken, bravo.
I respectfully disagree.
What Constitution ARE you reading?
THE Constitution does NOT allow for suspension EITHER of the entire document OR Habeas Corpus "in times of war," as you suggest -- and certainly not an idealogical (cough) "war". Only suspension of Habeas Corpuse, and only in times of rebellion or invasion. Period.
Stop being an activist jurist. ;-)
I would like to thank you, Mr. Worthington, for your dedication to this cause, and for your deeply humane decency in following this story to this point. I read your book about Guantanamo and was impressed with its thorough research and overall fairness. Your point has never been to dismiss the possibility that prisoners held at Guantanamo might, in some instances, pose a security risk to the world. It is that the United States has never tried to institute a fair and reasonable procedure for determining who among the prisoners have been unfairly detained and deprived not just of justice, but of the right to any avenue of address at all. When the history of the Bush Administration is written, the chapter on Guantanamo will epitomize everything that was wrong with a system that relied on fear-mongering to suppress the voices of justice and to institutionalize racism and bigotry.
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