Supreme Court Backs Rights for Guantanamo Detainees

Posted June 12th, 2008 at 12.24pm in Protect America, Rule of Law.

In a controversial 5-4 decision written by Justice Anthony Kennedy, the U.S. Supreme Court ruled today that the petitioners detained in Guantanamo Bay have the constitutional privilege of habeas corpus. The court also determined that the Detainee Treatment Act’s procedures for reviewing the detainees’ status was not an adequate and effective substitute for the habeas writ, and that section 7 of the Military Commissions Act is an unconstitutional suspension of the writ. (Read the decision.)

According to Kennedy, the writ may be suspended only when public safety requires it in times of rebellion or invasion. None of the cases cited by either side in this dispute, regarding the writ’s geographic scope at common law, was dispositive. The court also rejected the government’s reading of Eisentrager as formalistic and constricted.

Extraterritoriality questions, it stated, turn on “objective factors and practical concerns, not formalism.” The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the “power to decide when and where its terms apply.” The political branches may not “switch the Constitution on and off at will,” nor may they decide “what the law is.” (Let’s hope the political branches don’t ignore their co-equal obligation to interpret and apply the law.)

Due to the “exceptional circumstances” presented in this case—the “grave separation of powers issues” and that petitioners have been denied “meaningful access to a judicial forum for years”—the court will not remand the case back to the D.C. Circuit, but rather allow the petitioners to proceed with their habeas actions in the district court. And rather than offer a comprehensive summary of the actual procedures for adequate habeas, the court said that habeas entitles the detainee to a “meaningful opportunity to demonstrate that he is being held” and that the habeas court must have the power to order the “conditional release of an individual unlawfully detained.”

The court recognized that certain accommodations might be necessary to carry out the ruling, including, but not limited to, channeling the cases to a single federal district court and protecting sources and methods of intelligence gathering.

Chief Justice John Roberts wrote a scathing dissent, joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito, arguing that the court struck down the “most generous set of procedural protections ever afforded aliens detained by this country” without bothering to say what due process rights the detainees possess or how the statute fails to vindicate those rights, and before the statute was even allowed to be tested. The majority’s opinion was less about the detainees and all about the “control of federal policy regarding enemy combatants.”

Author: Cully Stimson
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33 Comments

June 12, 2008 Mark, CA writes:

The liberals on the Supreme Court are at it again. This time, they may well have outdone themselves. Prosecuting this war in the courtrooms on US soil. We are talking about individuals picked up off the battlefield abroad, not American citizens who have committed crimes domestically. How in the world can they (5 majority voting for the enemy) consider this a “Constitutional” decision. We are in an “unconventional” war and tying up the war and the hands of the professionals in our military is nothing short of tragedy. Why is it that this court seems to feel the need to advance policy from the bench? The dissent here falls in line with those (Roberts, Scalia, Thomas, and Alito) who make decisions through the lense of the US Constitution, not what they “feel” should be done. This decision disregards the fact that these detainees are not “garden variety” criminals. They were taken off the battlefield. Why must we set this precedent? We are only moving faster down the road to disaster. How can we win a war that is now brought into the courtroom? Disaster of mammoth proportion.

June 12, 2008 Fay writes:

I just have one thing to say.Its short and that is.
our supreme court is Educated Idiots .
I cant believe this is the America I
grew up in.GOD HELP US ALL.

June 12, 2008 Dave McDuffie, Laguna Niguel,Ca writes:

Shouldn’t the headline be “the Supreme Idiots”?

June 13, 2008 Alex, NH writes:

I guess I am just so far right wing that I think of the Constitution of the United States of America as the controlling document of our government. I actually think this decision scores one for the Constitution. Think of the fact that the Administration’s justification for the idea that Constitutional Rights don’t apply is that Castro is the leader of the sovereign nation of Cuba. That would imply that the Commanding Officer of the Naval Base in Guantanamo has to answer to Raul Castro. Not true at all.

I guess I am biased here, since I am active duty Navy (yes, I have deployed in support of the GWOT). Unlike many armchair generals, I actually had to swear to support and defend the Constitution of the United States. I believe that also applies to times such as these, not just times of peace. I challenge anyone who contests this decision to take an Oath of Enlistment, or to enter the military as a Commisioned Officer.

It is important to remember that part of defending the United States is preserving the freedoms that make us different than the rest of the world.

June 13, 2008 BFrench, Rome, Ga writes:

I’m speechless.

June 13, 2008 Phillip, MD writes:

Alex,

have you been deployed “boots-on-ground” to either Irag or Afghanistan? (To get an “eye-level-view” of the types of people we detain?)

Anyone who thinks that affording U.S. Constitutional Protections to Non-U.S. Citizens fighting AGAINST the U.S. is a great thing, is misguided in my book!

You need to read Justice Scalia’s dissent.
“…The writ of habeas corpus does not, and never has, run in favor of aliens abroad…”

I agree: “…It is important to remember that part of defending the United States is preserving the freedoms that make us different than the rest of the world…” but I argue that you have to BE a citizen to have those rights.

June 13, 2008 Mark , Texas writes:

Why is everyone so suprised at the courts choice ? they have given illegal aliens(more criminals) all the trappings of a constitutional citezenship without lifting a finger to preserve america’s way of life . should it be any different with terrorists ? they(the justices)are indeed traitors and should be delt with as such .

June 13, 2008 KipEsquire, US Soil writes:

@Philip: If they’re so obviously guilty of “fighting AGAINST the U.S.” then why can’t the government make a case against them, even by traditional (i.e., lax) wartime tribunal standards? (P.S. Did George W. Bush or Antonin Scalia ever serve in “boots-on-ground” combat?)

@Mark: Same question — you summarily dismiss them all as “terrorists” despite the fact that the government is often not been able to prove it, even by the weakest evidentiary standards.

I sincerely hope you two never, ever get called to jury duty.

June 13, 2008 Dodie writes:

“United we Stand, Divided we Fall”
let’s unite!!!
‘TAKE NO ENEMY ALIVE’

June 13, 2008 Miles A. Brumberg, D.O. writes:

The next thing that will happen is that these bastards, the terrorists, not FAB 5 on the Supreme Court, will be given a bail hearing and released on ridiculously low bail or worse on their own recognizance. Then you know what will happen next. They jump bail and fail to show up for their first court appearance. Sincerely, Miles A. Brumberg, D.O.

June 13, 2008 Harry, from Chicago writes:

Kip, who said they cannot bring forth a case against them? They are prisoners of war and to call them “detainees” lessens the impact of why they were captured in the first place.The fact is they are not entitled to the protections of our Constitution.Check out this commentary on the issue of our judiciary. http://anewbirthoffreedom.blogtownhall.co

June 13, 2008 Ed, Texas writes:

I thought the right of habeas corpus was awarded to U.S. citizens only by the constitution. So why can’t supreme court justices be impeached for failure to do their job as defined by their job description and sworn to at their swearing in ceremony?

June 13, 2008 Harry, from Chicago writes:

Kip, I would like to extend this to you from a Heritage report: “Under the international law of armed conflict, or law of war, the United States has the authority to detain enemies who have engaged in combatant actions, including acts of belligerence, until the end of hostilities. A nation may detain captured enemy fighters, not as punishment, but to keep them from returning to the battlefield.”

June 13, 2008 Marilyn in Scottsdale, AZ writes:

I am appalled. I am disappointed. I am outraged.
Thank you to Roberts, Scalia, Thomas and Alito for dissenting.
Now what do we do?
It was best said by Scalia: The Nation will live to regret what the court has done today.

June 13, 2008 Zafar, Denver CO writes:

Good decision, doubt that i will have anyone agree with me on this site, however i will voice my opinion. The reason this decision happened was because Bush refused to grant the people captured POW status as to circumvent the fourth Geneva convention. In that Vain he called them “Enemy combatants”, will get to that in a bit. The dissenters said that they did not deserve the rights of habeas corpus because they were not US citizens, however we were the ones who un-rightfully took them from their places of residence in Gambia or Bosnia, areas where we are not at war. So if they were forcibly brought onto US soil, there is no difference than immigrating so they should be granted fill rights. As for the ones captured in combat zones Iraq, Afghanistan, they should have been designated POW’s in the first place.
@ED–justices cant be impeached read the constitution they are for life only presidents can be impeached
@Mark, David, Fay three of the Justices who supported where nominated by republicans, Ford nominated Stevens, Reagan Nominated Kennedy and Souter was nominated by George H. W. Bush. As for their intelligence they are possibly the most educated people around many of them being law professors and serving on the court of numerous years. Attending places like Northwestern, Harvard, Stanford, Who knows I might just be another of of those stupid people but i vaguely remember those being prestigious university’s
@ Fay, your right i cant believe that this is the same America, i remember a time when we did not have to worry about Illegal Phone taps, E-mail traces, when the government did not check to see what books i check out, when there were not secret prisons across the globe, when we treat our veterans like crap, when we wage war but give no regard for the solders, where the press resorts to name calling in the context of Presidential Nominees (Obama, Ossama), your right America is not what it was, but who is screwing it up.
@ doddie they did unite and the majority won, Got to love democracy, and cause killing all the people who we dont like is going to solve all our problems, maybe that was what caused our problems in the first place!
@ mark again on the illegal immigrants issue, one your association of Illegal immigrants as criminals has no basis, two your American way of life would fail if they were not here, three this was a country of immigrants how are they any different than the original settlers. Oh and four this wonderful American way of life seems to be filled with war and genocide, remember how we so conveniently killed all the Indigenous people(Native Americans) great stuff that American way of life.
And Kip is right, the only area in which these people have been proven to be Terrorist is military tribunals, far from any good standard of proof. I wonder why we don’t let them be tried in civilian court, since the government must have got it right in detaining these people in the first place why is it so hard to prove it. It is not like we went around the world grabbing people we THINK might be terrorist no, we would want some proof first, don’t you think, Yes! lets go Find and lock up all the republican carrying NRA Roman Catholics cause you never know when there will be another Timothy McVeigh.
I am sure everyone will just be Jubilant upon finishing this.

June 13, 2008 Dave MO. writes:

This can be solved by a simple act. Kill them all and let God sort them out. Next tie, instead of capture kill’em.

June 14, 2008 Elliot, TX writes:

I always thought the Constitution was the law of the land for our citizens.

Zafar, you write like so many Liberals write….you don’t say what is right with this country….Lib’s only speak about what is wrong.

Try and re-read the Constitution and see where it is written that the Supreme’s make law? To quote a Constitutional lawyer, Mark Levin in an article at NRO: When justices seize authority from the other branches of the federal government, as well as state and local governments, under the rubric of judicial review, that’s tyranny. When justices veto legislative acts based on personal policy preferences, that’s tyranny.

This decision by the Supreme Court is a huge mistake that will cause more problems than it solves.

June 14, 2008 Miles A. Brumberg, D.O. Sewell, NJ writes:

Hey. I have a great idea. Just put all those detainees on the same plane and fly it, by remote control of course, right into the U. N. Building in New York City. Evacuate the UN beforehand so there are no collateral casualties. That way we get rid of two big headaches at the same time. No, not Al Sharpton and Michael Bloomberg. We get the UN out of New York City and we give the detainees their wish to meet the 70 or so virgins in heaven they were told they would get if they became martyrs. Who’s gonna know? Then, just to show the UN we aren’t the insensitive dolts they thought we were we offer them GITMO for the location of the new UN building. Whadda ya think? Great idea huh?

June 14, 2008 Zafar, Denver CO writes:

@ elliot, maybe i write like a liberal, however I consider myself the ultimate realist, in addition to that a pessimist so i would rather address the issues with something first, because if we fixate ourselves with only what is good and working, we will never strive to archive something better. Additionally your generalizations about how “lib’s” speak is 1 wrong and 2 irrelevant.

Second nowhere in the decision did those five “make law” if you read(re-read) the majority opinion, all their arguments were grounded in precedent. Additionally Levin following levins vain of thought we can see that the executive has clearly overstepped their boundary’s i will use for example one of the executives many breaches of SOP, Signing Statements

signing statement (for those who don’t know is when Bush signs a bill he can add a clause(s) that don’t have to be approved or voted on, in which he can say anything, like to ignore sections of bills)

to quote Douglas W Kmiec Professor of Law and Director, Thos. J. White Center on Law & Government, University of Notre Dame. Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, 1985-1987

“a President’s signing statements destroys this executive accountability by representing his personal opinion, unreviewed by Congress, as the correct interpretation of a statute. The imposition of presidential opinion, which critics say should be of no import to a litigating court, allows the President to create and execute legislation unchecked by another branch of government. As a result, the separation of powers doctrine is violated. ”

this is unlimited and complete control, not what Levin was referring to in your quote, in no way does this decision infringe on state and local government or the federal government, the decision had to do with a military base and its prisoners and if they could be tried in US courts, this decision was in no way an infringement of rights

Finally i have more more quote from Professor Eric M. Freedman, Maurice Deane Distinguished Professor of Constitutional Law at Hofstra
The court has brought the Constitution home from exile Everyone who believes that America is a country devoted to the rule of law should celebrate because this ruling says that the Executive needs to be accountable to a neutral judicial forum in its decisions to imprison people — and that is the basic restraint on tyranny that animated the American Revolution.”

June 14, 2008 Peter, Poland writes:

I just have one thing to say. Liberal wings in Supreme Court are sick a head!!! Its incredible wrong decision for America!!!
I come from Poland and I want say: Thank you to American soliders who fight with terrorism! Thank’s Guys! God bless America!!!

June 14, 2008 Peter, Poland writes:

I can t belive it!!!

June 14, 2008 Fred Miller Atlanta writes:

As enemy combatents and noncitizens they should not have any rights under the U.S. Constitution.Again the court is worried more about the rights of squalid criminals than they are of national safety. This is yet another travesy of justice.

June 14, 2008 Darrell Mc Neill writes:

Terrorists 1, American Common sense 0
Another law made by the Court. What is Congress going to do?? I’m sure that Congress is dancing in the streets. I’m ashame of the Court. Darrell

June 14, 2008 Alex, Reno writes:

I am a little hazy on this issue because I haven’t received my free copy of the constitution yet. But it seems the court acted unconstitutionally by hearing the matter and was immoral in its ruling.

The President went to congress for appropriate laws, and is enforcing them. The authority of the military derives from the executive branch and the military is the tool by which the President conducts foreign policy and acts against foreign enemies.

Now, the Supreme Court has countermanded the president and directed the military. It seems that the court is directly intervening in the affairs of the executive branch. The court has no jurisdiction over either of the other branches, they are supposed to interpret the laws Congress and the states pass when a citizen or lawful resident seeks redress, mediate disputes between the states and occasionally interpret a treaty when a foreign government requests it. That these combatants neglected to obtain status or support from their governments represents bad judgment on their part not extra responsibility on ours.

Aside from the distaste we feel at extending the rights that our patriots have died defending to people, who have killed some of those patriots while attempting to enslave us and deny us those same rights, it is immoral for the court to assert US law and custom over other countries citizens outside of the US, as it would be for them to subject us, outside of their country, to their laws, and is in effect a form of piracy.

The Supreme Court has extended its reach beyond our borders. Can we expect them to eventually make rulings in lieu of treaties? While enemy fighters are in the custody of the US military outside of the US, there treatment is a part of military strategy in protecting us. Their treatment is a matter to be negotiated with their government, usually in exchange for humane treatment of our captured soldiers. The court should not be arbitrating between the executive branch and foreign governments because it interferes with the making of treaties. That their governments are not objecting to their treatment is no reason for us to act in their government’s stead.

If the President does not ignore this ruling, it will be a constitutional crisis of the first order. The court has no constitutional authority to make de-facto treaties.

Dump Harry, vote for Alex, Democrat US Senator from Nevada.

June 14, 2008 Jason Black Pittsburgh writes:

Zafar, nothing in the majority is based on precedent. As Justice Scalia correctly states, “What drives today’s decision is neither the meaning of the Suspension Clause, nor the principles of our precedents,
but rather an inflated notion of judicial supremacy.” Enough said!

June 15, 2008 John Bohner writes:

OK…So how many terorrist just broke out of jail in Afganistan? Yeaa good idea you 5 supreme intelectual’s did one better than your eminent domain decision. But now you put Americans in harm way…

Are the 5 who voted for it brain dead or just living in their own fantasy bubble. Personally I think both are true.
In addition to this type of judgement call, the media/foreign controlled shady polititions we see now, the trash movies coming out of hollywood (note to mention the hyped propoganda on sun spots.) (global warming sorry) We are in the fast lane to loose what so many have sacrafised for, in this country. You know trying to get it back could be impossible.

June 15, 2008 John W. Reagan writes:

This yet another example of judicial legislating. I am certain this ruling is not what the founding fathers had intended. Clearly more Americans will have to be murdered before we get it. It as if 09/11 never happened.

June 15, 2008 Robert S. Missouri writes:

@libs This is crazy,do you all think that our military just walks around and picks up people and calls them terrorist!? These scum of the earth prisoners deserve no rights.

@libs For those libs who think this war is crazy and these prisoners are innocent, how many attacks has there been since 9\11? I’ll give you the answer, NONE! And this is because of our current policy handling of the war.

I’m a young guy who is two months away from starting boot camp. I’m enlisting to do my part because the libs sure as hell are not. And i don’t want to be capturing those scum bags just to have them be givin the rights of my peoples law.

SHAME on those 5 i see them as traitors

sorry for the rant, i just can’t stand seeing whats going on.

June 16, 2008 Alex, NH writes:

[url]http://www.constitutioncenter.org/explore/TheU.S.Constitution/index.shtml[/url]

You don’t need to wait for your free copy of the Constitution. It is 2008, and the internet has [i]some[/i] credible information out there.

I hope I didn’t sound like I support letting these jokers go. I don’t think that at all. I would also like to point out that this Supreme Court ruling doesn’t even stop these people from being held indefinitely. It just places the burden of proof on the Federal Government, like it should be. I am a firm believer in strong national security, hence by decision to join the military (and stay in the military).

I may be too far right wing for this discussion, though, because I don’t support the extension of executive power that has come from this administration. Trust me here, you can be conservative and not support a neo-conservative administration. Remember that conservatism used to be an intellectual movement, based on limiting the extent of the Federal Government and protecting our borders. As far as I know, our borders aren’t doing too hot right now (still, we owe a HUGE amount of respect to the men and women of the Border Patrol), and our government is expanding daily.

Having just read the Constitution again (I am up to almost weekly now — I admit I have quite a bit of free time at this point due to a recent surgery), I don’t see any place in there that says we only grant constitutional rights to U.S. citizens on U.S. soil. As far as I understand it, the Constitution of the United States of America applies to everywhere under the cognizance of the U.S. Government, and don’t give me the line about Raul Castro being the sovereign leader of Cuba. The Commanding Officer of the Naval Station, Guantanamo Bay, doesn’t answer to the Castro regime.

I am telling you folks out there, don’t claim to be conservative while supporting expanding the power of the Federal Government. It doesn’t work. Also remember that, to keep the conservative movement alive, it takes independent thought and analysis.

June 16, 2008 Mark, CA writes:

Can someone please explain why the hell liberals are so hell bent on losing this war? Despite all the efforts of these losers to keep us from winning we still are. Hats off to our US military and our brave men and women who answer to call of protecting liberty and freedom. No thanks to the liberals, they are invested in defeat and will do anything to sieze it. That is why they rely on the courts to put through decisions like this…we, the people, can’t touch them. You liberals are weak and should be ashamed. Now we need to fight this war in the court rooms. Makes me so angry…anyone else angry about these liberals and their disdain for our free country? This decision is a disgrace and yet again, thanks to the liberals, we will all pay, especially our brave men and women in harms way.

June 17, 2008 Alex, NH writes:

You do know that this decision won’t just cause all the dirtbags in Guantanamo to get released, right? In fact, they will still be held indefinitely there. This will just restructure the trials from a military tribunal system to something more like the current Courts Martial system that we already use in the military. Again, it simply places the burden of proof on the government. As conservatives we should appreciate this.

I support the Bush administration (beyond the fact that the President is Constitutionally assigned the responsibility to be MY Commander in Chief — He has an unfathomably hard job to do and I have to respect any person who steps up to the plate as he has), but I don’t just blindly support every decision the administration makes.

I want you folks to remember that the expansion of executive power will still exist if (God forbid) Obama gets elected. What will he do with it? Remember the conservative (and actually Constitutional, when you think about it) platform of limiting the power of the Federal government. Power the Congress vested in the Executive Branch prior to the ‘06 power shift will still be there the next time Executive power shifts, and I don’t know if we really want that when someone with a bloated government domestic agenda comes into office.

As far as the term ‘war’ goes: calling it that without a rifle in your hands is kind of like calling it unconstitutional. Remember that the Congress has the power to declare war, issue letters of marque and reprisal, etc. Not the President. The guys over there shooting have a bit more say on wether or not it’s a war than we do from our lofty positions at a keyboard, don’t you think?

June 19, 2008 Robert S. Missouri writes:

Alex, I totally respect what you are saying. But as we all sometimes do, is overlook certain things. Sure the constitution may not exactly say that its only citizens that get rights but in this case with these dirt bags we should make a exemption. They are worse than anyother enemy the United States has ever fought. They’ve MURDERED our innocent children, women and men on our soil without US occupying their country or having a declaration of war. They’re society is hellbent on destroying everybody thats not one of them.

In my book these people are not human, they are some product of evil.

With that being said i checked out pictures of Guantanamo, we treat their prisoners so well as far as prisoners of war goes. Think, what do they do with our captured prisoners?! They either decapitate them, shoot them, starve them or exploit them for money or some terms.

I understand where you are coming from but this is my point of view, it may not make me a full blown conservitive but thats what i believe.

October 11, 2008 Mycos, BC, Canada writes:

Having heard the name “Heritage Foundation” referred to as an old and venerable institution of the American political conservatives establishment, I am surprised and extremely saddened to find the level of discourse here only marginally better than one can find on any right-wing forum.

As a matter of curiosity I spend a great deal of time interacting with the members of a wide cross-section of the ideological spectrum; from communist or socialist on the left through the popular and personal mainstream bloggers, on through the fascist, monarchist or even racist skin-head ideologies of the far-right. And on a subject as lofty and full of dire implications for the survival of the country, reading all these desperate rationalizations for why you disagree with the decision leaves me wondering whether conservatism has anything /at all/ to do with ideology, or whether instead it is really is a personality disorder with political representation.

Have any of you asked yourself why you disagree with the decision to reinstate Habeas in GITMO? Did any of you think out the ramifications of allowing a President to decide when and where fundamental human rights will apply? Did you ask yourself whether every President who suspends it will be conservative, or whether it’s at all possible one of you could be picked up by a foreign government who decides whether you should be afforded the right to contest your imprisonment based on the decision your own leader took when holding his citizens?

Look. Bush has lied to you all about so many things now that one would think it would be an automatic reaction for a sane person to distrust what he has done and trust what has been tradition for over 800 years in the West. Habeas Corpus.

But no. Your fear of a threat exaggerated in your minds by the spectacle of 9/11 has somehow tripped a perceptual or cognitive switch too where you now believe stateless religious kooks can somehow launch attacks with results more dire than what the USSR presented you. And now you want to let a President decide when and where habeas rights apply to human beings, a right that was thousands of years in the making, and hundreds of years as the keystone of democratic rule. You should be ashamed of yourselves. You’re acting like children!

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