SCOTUS - Detainees Have Habeas Rights

By Cernig

It was close, but today the Supreme Court decided that America should observe the rule of law by applying Habeas Corpus to detainees at the Gitmo prison complex.

The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.

In its third rebuke of the Bush administration's treatment of prisoners, the court ruled 5-4 that the government is violating the rights of prisoners being held indefinitely and without charges at the U.S. naval base in Cuba. The court's liberal justices were in the majority.

Justice Anthony Kennedy, writing for the court, said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

Kennedy said federal judges could ultimately order some detainees to be released, but that such orders would depend on security concerns and other circumstances.

The White House had no immediate comment on the ruling. White House press secretary Dana Perino, traveling with President Bush in Rome, said the administration was reviewing the opinion.

It was not immediately clear whether this ruling, unlike the first two, would lead to prompt hearings for the detainees, some of whom have been held more than 6 years. Roughly 270 men remain at the island prison, classified as enemy combatants and held on suspicion of terrorism or links to al-Qaida and the Taliban.

The ruling could resurrect many detainee lawsuits that federal judges put on hold pending the outcome of the high court case.

The Court split on partisan lines. As usual when such judgements are forthcoming, I turn to Marty Lederman for expert commentary:

The Court held 5-4, in an opinion by Justice Kennedy, that the petitioners at GTMO have a constitutional right to petition for habeas corpus and that the DTA/MCA process of D.C. Circuit review from CSRT decisions is not an adequate alternative to habeas.

...But as far as I can tell just yet, the Court did not reach the two even more important questions:

1. Whether the Constitution applies to detainees held outside GTMO; and

2. What the substantive standard for detention is: "It bears repeating that our opinion does not address the content of the law that governs petitioners� detention.
That is a matter yet to be determined."

At first glance, it would appear that although the decision is momentous, there are other important things that it does not do:

It does not speak to whether GTMO should be closed (although it basically undermines the Administration's principal reason for using GTMO in the first place, which was to keep the courts from reviewing the legality of the Executive's conduct).

Nor does it affect, in any dramatic sense, possible military commission trials

...therefore there will be no call for a new "special court" process to replace the commissions. ([Because the Court holds that the Constitution applies at GTMO, that might enhance some of the defendants' specific claims and defenses in those trials, such as under the Ex Post Facto Clause (the argument that the conduct they are alleged to have engaged in was not a crime at the time of its commission) -- but that would not in and of itself call into question the very existence of the commissions or precipitate an overhaul of the commission process.)

It seems to me, though, that this ruling will most affect detainee's defenses in the areas of torture to produce evidence and in the prosecution deliberately destroying or witholding evidence from the defense. Some very bad people are likely to walk free along with the innocent because the Bush administration tried to walk around domestic and international principles of law, creating an entirely spurious new designation of "unlawful combatant" so that they could either hide detainees from due process indefinitely or, failing that, conduct kangaroo courts.

If they'd just stuck with the existing definitions, all the Gitmo detainees against whom they could build a real case under the actual rules of law, without torture and without rigging the courts, would have been tried as POW's already. If found guilty, the death penalty would have been warranted in some cases. I would personally have had no problem with that. That it hasn't happened is a failure of the Bush administration, no-one else. They have proven themselves incompetent to shepherd America's national security.

Indeed, there is surely a case now, even within the U.S. system, that these detentions without habeas constitute war crimes in that the administration had prior knowledge that they were bending the law to give cover to illegal actions. Certainly, the Nuremberg trials ruled thusly for those who had helped the Nazis reinterpret the law to apparently legalise their tortures and other crimes.

Of course, the Right doesn't want to see it that way. John Hawkins is particularly shrill in his denial of the direction of the arrow of causality.