13 June 2008
Guantanamo Detainees Win Right to Challenge Their Detention
Supreme Court upholds, extends right of habeas corpus for non-U.S. citizens
Washington -- Individuals detained as illegal combatants in the U.S. Navy base at Guantanamo Bay, Cuba, have a constitutional right to challenge their detention, the U.S. Supreme Court ruled June 12.
The 5-4 decision in the case of Boumediene v. Bush was hailed by many within and outside the United States as a reaffirmation of U.S. legal values and a demonstration of the United States’ commitment to rule of law.
The large number of non-uniformed combatants fighting independent of any nation’s official military forces engaging in armed hostilities and terrorism in Afghanistan and other countries has posed a thorny set of legal problems. The United States, drawing on both domestic and international military law, has used the military commission process to protect the rights of the accused and afford them fair trials.
The U.S. military also has a formal process in place to assess each individual and make a determination about their detention even though hostilities are ongoing -- something the Defense Department calls “an unprecedented step in the history of warfare.” Since 2002, more than 500 detainees have departed Guantanamo for other countries. As of May 2, approximately 270 detainees were being held at Guantanamo.
But on June 12, the nation’s highest legal tribunal ruled the right of habeas corpus -- a Latin phrase that translates to “You have the body” -- applies to those held at Guantanamo. This ruling overturns a provision of the Military Commissions Act of 2006 (MCA Section 7) that states no court shall have jurisdiction to consider an application for habeas corpus filed by any non-U.S. citizen detainee.
The Supreme Court’s majority opinion in the case underscores a fundamental tenet of the U.S. system of democracy: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”
HABEAS CORPUS
Habeas corpus, which provides that a person held by a governmental authority must have the right to ask a court to inquire into the legality of the detention, is a fundamental right guaranteed in the U.S. Constitution.
It appears in the body of the original document and was judged so essential by the Framers that it is explicitly protected: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” That clause prohibits Congress from suspending habeas corpus, except for public safety during times of rebellion or invasion, and similarly restricts state governments.
The June 12 ruling, as outlined in the syllabus that accompanied the opinion, found:
• The petitioners have the constitutional right of habeas corpus;
• MCA Section 7 operates as an unconstitutional suspension of the writ; and
• Even though courts “must accord proper deference” to the legislative and executive in matters of national security, U.S. courts must adhere to the separation of powers and remain faithful “to freedom’s first principles, chief among them being freedom from arbitrary and unlawful restraint.”
Justice Anthony Kennedy, writing for the court, cites the Constitution’s deliberate separation of powers within the U.S. government. Within that structure, “few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.”
He adds that “the political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.”
Acknowledging that the “law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security,” Kennedy nonetheless asserts, “Established legal doctrine, however, must be consulted for its teaching. … Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.”
PRESIDENT BUSH
President Bush has stated on several occasions that he does not want the detention facility at Guantanamo to remain open any longer than necessary, but he has defended the United States’ right to detain enemy combatants.
“Detention of enemy combatants in wartime is not an act of punishment,” the U.S. Department of Defense states in a fact sheet. “It is a matter of security and military necessity, and has long been recognized as legitimate under international law.”
Bush, traveling in Europe when he learned of the decision, told reporters in Rome that his administration will “abide by the Court's decision. That doesn't mean I have to agree with it. It's a deeply divided Court, and I strongly agree with those who dissented.” He said his administration would study the decision “to determine whether or not additional legislation might be appropriate.”
The dissenting opinions the president referenced were penned by Chief Justice John Roberts and Justice Antonin Scalia. Each raised concerns that the court might be overreaching its authority.
Scalia predicted the court’s action would have “disastrous consequences.” The decision “will almost certainly cause more Americans to be killed,” he said. “The nation will live to regret what the court has done today.”
“So who has won?” Roberts asks. “Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right. … And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.”
The decision remands (sends back) the case to a lower court that will reconsider the case based on its merits in light of the Supreme Court’s findings.
Except in very specific situations, usually those involving disputes between states or between the United States and other countries, the Supreme Court does not conduct trials and does not rule on issues of fact. It is the nation’s ultimate arbiter of appropriate legal procedure and questions of constitutionality. (See “U.S. Supreme Court Is a Unique Institution.”)
