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June 12, 2008

Supreme Court Deals Death Blow to Gitmo

By Jonathan Hafetz

Today's ruling by the Supreme Court in Boumediene v. Bush delivered a dramatic

blow to the President's lawless detention policies and overturned an effort by the
previous Congress to eliminate the centuries-old right of habeas corpus. The ruling
means that prisoners at the US military base at Guantanámo Bay, who have been
held for more than six years without charge, will finally have the opportunity to
challenge the accusations against them in a court of law. More broadly, the ruling
rejects the premise on which Guantánamo is based: that the President can create a
lawless enclave simply by incarcerating people outside the mainland United States.
Boumediene marks the culmination of the quest for due process that began in 2002,
when the first habeas corpus petitions were filed by Guantánamo detainees in federal
court. In 2004, the Supreme Court ruled in Rasul v. Bush that the detainees had a
right to habeas corpus under a statute that dated to the nation's founding. The
Administration, however, then sought to block any of the cases from going forward,
arguing that the detainees had no rights to enforce beyond filing a piece of paper
called "habeas corpus" and that any rights they did have were satisfied by the
summary military proceedings it had hastily put in place after the Supreme Court's
decision.
Congress, in turn, twice tried to eliminate habeas rights for detainees. The Supreme
Court rejected the first attempt in 2006, ruling in Hamdan v. Rumsfeld that the
legislation did not apply to pending cases. So Congress tried again with the Military
Commissions Act of 2006 (MCA), which made explicit that the elimination of habeas
rights applied to all Guantánamo cases, past, present and future. The issue before
the Supreme Court in Boumediene was whether the MCA violated the constitutional
guarantee of habeas corpus, known as the "Suspension Clause."
The first question the Court addressed in Boumediene was whether the Guantánamo
detainees had a right to habeas corpus. The Administration had argued that because
the prisoners were foreign nationals held outside the sovereign territory of the United
States, they had no rights under the Constitution. As a result, the President and
Congress were free to deny them any access to the courts at all.
The Supreme Court rejected this argument in no uncertain terms. As Justice Anthony
M. Kennedy explained in his 5-4 opinion for the Court, formal constructs like
"sovereignty" do not and cannot dictate the presence or absence of constitutional
rights because they are "subject to manipulation by those whose power it is designed
to restrain."
Boumediene thus sounded a death-knell to the idea of Guantánamo itself: that the
President can imprison people indefinitely without court review simply by bringing
them to a US enclave on an island in the Caribbean. Instead, Kennedy's opinion
adopts a more flexible and pragmatic approach under which the Constitution's
applicability to those beyond America's shores depends on a practical assessment of
the circumstances. And under that approach, the application of fundamental
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constitutional rights at Guantánamo, where individuals have been detained for more
than six years in territory under total US control, is a no-brainer.
The ruling that the Guantánamo detainees are protected by the Constitution,
however, did not end the case. The government had also argued that the process
Congress created in 2005 in place of habeas corpus satisfied all the rights
Guantánamo detainees had. This process had two parts: first, the summary military
hearing, known as a Combatant Status Review Tribunal (CSRT); and second, limited
review of the CSRT's decision by the court of appeals in Washington, DC, pursuant to
the Detainee Treatment Act of 2005.
The Supreme Court made clear that Congress can create a constitutionally adequate
substitute for habeas corpus without running afoul of the Suspension Clause if that
substitute provides what habeas corpus provides. But the Court also ruled that
Congress had unmistakably failed to provide an adequate substitute for habeas
corpus for Guantánamo detainees.
The reason, the Court explained, was that the habeas itself requires an opportunity
for a prisoner to see the allegations against him, to respond to those allegations with
the assistance of counsel, and to a determination by an independent judge. The
CSRT, by contrast, relied primarily on secret accusations denied prisoners the
assistance of counsel and an opportunity to submit evidence showing their
innocence, and lacked neutrality. Any court review limited to such a sham hearing,
the Supreme Court said, was tantamount to no review at all.
In another decision issued today, the Court reaffirmed the right of American citizens
to habeas corpus no matter where they are held. The Court ruled in Munaf v. Geren
that two American citizens detained in Iraq have a right to habeas corpus. In so
doing, the Court rejected the government's argument that the President could avoid
the reach of habeas corpus by claiming that the United States was holding the
prisoners under "international authority"--in that case, a UN Security Council
Resolution. While the Court agreed with the government that the prisoners could not
obtain review of their transfer to Iraqi custody, it made clear that American citizens
have the right to habeas corpus as long as they are held by their government, no
matter where they are detained or what label is attached to their detention.
Today's ruling in Boumediene does not require the release of any prisoner at
Guantánamo. Instead, it merely mandates that the 275 prisoners who are still there
must receive what they should have received long ago: an opportunity to challenge
their imprisonment in court. In a country committed to justice and the rule of law
nothing less is acceptable. While it has taken almost seven years to vindicate this
most modest principle, late is better than never.

About Jonathan Hafetz

Jonathan Hafetz directs litigation for the Liberty and National Security Project of the
Brennan Center for Justice at NYU School of Law. He is the author of a forthcoming
book on post-9/11 detentions, to be published by NYU Press.