The War on Terror

The Supreme Court once again rebuked the Bush administration for its handling of the rights of men confined at the Guantanamo naval base in Cuba, declaring that those in custody there have a constitutional right to challenge their detention. By a 5-4 vote in Boumediene v. Bush, the Court struck down sections of the 2006 Military Commission Act that stripped American courts of jurisdiction over habeas corpus petitions filed by foreign nationals held at Guantanamo, and ordered quick habeas hearings for them. As many as 200 detainees had habeas petitions pending.  This was the third consecutive rebuke for the administration in its policy of treating the detainees as non-persons devoid of any rights protected by the Constitution.

In 2004, the Court handed down decisions in Hamdi v. Rumsfeld and Rasul v. Bush that people, even enemy combatants, could not be held indefinitely without some due process of law to determine their fate. President Bush then ordered military trials for the detainees, but in Hamdi v. Rumsfeld (2006) the Court held that the military tribunals set up by the administration failed to provide minimal guarantees of due process.  An angry Bush then got Congress, still dominated by Republicans, to pass the Military Commission Act that would supposedly legitimize the military trials and keep civilian courts out of the matter.

Writing for the bare majority, Justice Kennedy said the review provided by the 2005 Detainee Treatment Act "falls short of being a constitutionally adequate substitute" because it failed to offer "the fundamental procedural protections of habeas corpus." The laws and the Constitution, he declared, "are designed to survive, and remain in force, in extraordinary times."  To ensure that those guarantees could be enforced, civilian courts would hear habeas petitions. While the decision left open many questions, it was categorical in its rejection of the administration's basic arguments, and repudiated the legal basis for the strategy adopted after the September 11, 2001 attacks, of housing prisoners captured in Afghanistan and elsewhere at Guantanamo where, according to advice given by Justice Department lawyers to the White House, domestic American law would not reach.

Normally the Court, having decided that the right to habeas existed, would have sent the case back to the appeals court for further review of the procedures involved.  But the "gravity of the separation-of-powers issues raised by these cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional," and required that the high court itself make these determinations. The majority concluded that the procedures devised by the administration and the Congress had major flaws. A  detainee could not present evidence that might clear him of blame because that evidence was withheld from the record or presented after the fact.

Kennedy took the unusual step of orally delivering much of his opinion, which included a lengthy history of habeas corpus.  He was followed by Justice Scalia, who also read aloud from his bitter dissent and charged that the majority opinion "will almost certainly cause more Americans to be killed. . . . The decision is devastating." Justice Roberts also dissented, and criticized the majority for dismissing out of hand the efforts of the other two branches to respond to the Court's prior rulings. He claimed that "this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants." (Former Solicitor General Paul Clement, who had argued the case, told the justices that "the political branch has spoken," an argument that at least five of the justices rejected.)

President Bush said "We'll abide by the Court's decision. That doesn't mean I have to agree with it." The administration would have to decide whether to go back to Congress seeking further authority.  It appeared unlikely that Congress would cooperate since most Democrats—who now control both houses—applauded the decision, while the ranking Republican on the Senate Judiciary Committee, Arlen Spector, had filed a brief with the Court arguing the law was unconstitutional.

What the immediate results of the decision will be are difficult to ascertain.  Royce Lambeth. the chief judge of the U.S. District Court for the District of Columbia which will hear the petitions, announced that he would call in all of the lawyers from both sides to see if they could agree on how best to handle the matter.  But even if treated expeditiously, the hearings could take time, and there is no question that the Bush administration will, as much as it can, drag its feet seeking delay so that the detainee problem will become the responsibility of the next administration. (The Democratic candidate, Barack Obama, applauded the decision, while the Republican nominee, John McCain, criticized it.)

Ironically, given the deep split in Boumediane, the justices stood unanimously in a second habeas ruling the same day. Two men, Mohammad Munaf and Shawqi Ahmad Omar, both American citizens, faced criminal charges in Iraq and were being held in an American camp. The administration claimed that because the men were technically held by the 26-nation multinational force in Iraq, federal courts did not have jurisdiction to hear their habeas corpus petitions.

All nine justices rejected the Bush administration position in Munaf v. Geren. The men were being held in an American military prison, and that what mattered was that they were thus held by American soldiers subject to a United States chain of command.  They thus had the right to file a habeas petition.  But, after rejecting the administration position, the Chief Justice ruled against the two men on the merits, stating that their release through habeas "would interfere with the sovereign authority of Iraq to punish offenses against its laws committed within its borders."

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