06/14/2008 04:08 pm ET | Updated May 25, 2011

Supreme Court Defends Detainees' Right to Habeas Corpus; Huge Step for Anti-Torture Movement

The email message from Michael Ratner's office was unusual for a movement conditioned to defeats:


TODAY the supreme COURT ruled and our CASE WON!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! very very very crazed--I will try to respond..."

Ratner is president of the Center for Constitutional Rights [CCR], the human rights advocates whose defense of Guantanamo detainees was supported in a 5-4 Supreme Court decision with far-reaching implications for the federal government's taxpayer-funded parallel universe of gulags.

In the majority opinion of Justice Anthony Kennedy, chief among our "first principles" is "freedom from arbitrary and unlawful restraint." Therefore, the Court ruled, the remaining 270 Guantanamo detainees are entitled to federal court hearings challenging the "black hole" of their detention.

Where the Congress, including the Democratic leadership, had failed to flatly reject the White House arguments, a Supreme Court that installed George Bush in the White House turned against him on the jurisdictional question. Most of the detainees, according to the Pentagon's claims, are "too dangerous to release" though the evidence against them "is not strong enough." One hundred ninety of the 270 may be eligible for release on lack of evidence or "classified evidence" which the Pentagon will not reveal. [NYT, June 13, 2008]

Speaking politically rather than legally, right-wing Justice Anton Scalia fed the conservative talking points agenda by claiming, beyond all rationality or standards of evidence, that the Court decision will "almost certainly cause more Americans be killed."

Despite the historic victory five years after 9/11, it will require new struggles for the Court's logic to apply to the conditions in Iraq and Afghanistan, however. The December 2003 Taguba Report concluded that American military police committed "sadistic, blatant and wanton" criminal acts on Iraqi detainees including jumping on naked feet, forcing men to wear women's underwear, attaching wires to the penis, and US military police having sex with a female Iraqi detainee. A suspect named Manadel al-Jamadi was murdered under CIA interrogation in 2003 and, of course, the world thinks that the Abu Ghraib revelations were about an isolated handful of "rotten apples."

Yet the facts should be considered: numerous "ghost planes" flying into Baghdad airport in 2003-2004, the Takuba Report, and numerous Congressional and White House documents that suggest the massive preventive detention, torture and abuse of tens of thousands of Iraqis and Afghans, mostly young and male, in dark gulags where they lack any contact with human rights lawyers and observers, or their families and face no charges or evidence.

This human rights catastrophe has continued since 2003-2004, when more than 50,000 Iraq detainees were rounded up, most of them without charges, by the American military. Most recently, the US military detains 20-25,000 while the even more brutal Iraqis are holding some 25,000, according to New York Times and United Nations figures. It is safe to estimate that over 100,000 Iraqi young men have been rounded up and detained without charges or credible since 2003.

Human rights lawyers need to turn their attention to the US-funded, US-equipped and -advised gulag which has cost American taxpayers some $25 billion these five years.

Though they are held in Iraq rather than Guantanamo, are they without habeas corpus rights?

Is it right that they are denied lawyers?

Is it right that they are held without evidence?

From a security point of view rather than a moral one, does it make sense to humiliate, abuse and enrage the next generation of young men in these countries?

Does anyone in America know that the chief counterinsurgency adviser to Gen. David Petraeus advocates a "global Phoenix program," the counterinsurgency plan which resulted in tens of thousands of torture regimens and deaths of civilian Vietcong supporters in South Vietnam?

Tom Hayden is the author of
Ending the War in Iraq [Akashic, 2007]. For more information, go to