SCOTUS rules Gitmo detainees can appeal in civilian courts

[witchcurlgirl]

WASHINGTON — Foreign terrorism suspects held at the Guantánamo Bay naval base in Cuba have constitutional rights to challenge their detention there in United States courts, the Supreme Court ruled, 5 to 4, on Thursday in a historic decision on the balance between personal liberties and national security.

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony M. Kennedy wrote for the court.

The ruling came in the latest battle between the executive branch, Congress and the courts over how to cope with dangers to the country in the post-9/11 world. Although there have been enough rulings addressing that issue to confuse all but the most diligent scholars, this latest decision, in Boumediene v. Bush, No. 06-1195, may be studied for years to come.

In a harsh rebuke of the Bush administration, the justices rejected the administration’s argument that the individual protections provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were more than adequate.

“The costs of delay can no longer be borne by those who are held in custody,” Justice Kennedy wrote, assuming the pivotal role that some court-watchers had foreseen.

The issues that were weighed in Thursday’s ruling went to the very heart of the separation-of-powers foundation of the United States Constitution. “To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this court, say ‘what the law is,’ ” Justice Kennedy wrote, citing language in the 1803 ruling in Marbury v. Madison, in which the Supreme Court articulated its power to review acts of Congress.

Joining Justice Kennedy’s opinion were Justices John Paul Stevens, Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. Writing separately, Justice Souter said the dissenters did not sufficiently appreciate “the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years.”

The dissenters were Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas, generally considered the conservative wing on the high court.

Reflecting how the case divided the court not only on legal but, perhaps, emotional lines, Justice Scalia said that the United States was “at war with radical Islamists,” and that the ruling “will almost certainly cause more Americans to get killed.”

And Chief Justice Roberts said the majority had struck down “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”

The immediate effects of the ruling are not clear. For instance, Cmdr. Jeffrey Gordon, a Pentagon spokesman, told The Associated Press he had no information on whether a hearing at Guantánamo for Omar Khadr, a Canadian charged with killing an American soldier in Afghanistan, would go forward next week, as planned. Nor was it initially clear what effects the ruling would have beyond Guantánamo.

The 2006 Military Commission Act stripped the federal courts of jurisdiction to hear habeas corpus petitions filed by detainees challenging the bases for their confinement. That law was upheld by the United States Court of Appeals for the District of Columbia Circuit in February 2007.

At issue were the “combatant status review tribunals,” made up of military officers, that the administration set up to validate the initial determination that a detainee deserved to be labeled an “enemy combatant.”

The military assigns a “personal representative” to each detainee, but defense lawyers may not take part. Nor are the tribunals required to disclose to the detainee details of the evidence or witnesses against him — rights that have long been enjoyed by defendants in American civilian and military courts.

Under the 2005 Detainee Treatment Act, detainees may appeal decisions of the military tribunals to the District of Columbia Circuit, but only under circumscribed procedures, which include a presumption that the evidence before the military tribunal was accurate and complete.

The ruling on Thursday focused in large part on the centuries old writ of habeas corpus (“you have the body,” in Latin), a means by which prisoners can challenge their incarceration. Noting that the Constitution provides for suspension of the writ only in times of rebellion or invasion, Justice Kennedy called it “an indispensable mechanism for monitoring the separation of powers.”

In the years-long debate over the treatment of detainees, some critics of administration policy have asserted that those held at Guantánamo have fewer rights than people accused of crimes under American civilian and military law and that they are trapped in a sort of legal limbo.

Justice Kennedy wrote that the cases involving the detainees “lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measure from September 11, 2001, to the present, is already among the longest wars in American history.”

President Bush, traveling in Rome, did not immediately react to the court’s decision. "People are reviewing the decision," Mr. Bush’s press secretary, Dana M. Perino, said. The president has said he wants to close the Guantánamo detention unit eventually.

The detainees at the center of the case decided on Thursday are not all typical of the people confined at Guantánamo. True, the majority were captured in Afghanistan or Pakistan. But the man who gave the case its title, Lakhdar Boumediene, is one of six Algerians who immigrated to Bosnia in the 1990’s and were legal residents there. They were arrested by Bosnian police within weeks of the Sept. 11 attacks on suspicion of plotting to attack the United States embassy in Sarajevo — “plucked from their homes, from their wives and children,” as their lawyer, Seth P. Waxman, a former solicitor general put it in the argument before the justices on Dec. 5.

The Supreme Court of Bosnia and Herzegovina ordered them released three months later for lack of evidence, whereupon the Bosnian police seized them and turned them over to the United States military, which sent them to Guantánamo.

Mr. Waxman argued before the United States Supreme Court that the six Algerians did not fit any authorized definition of enemy combatant, and therefore ought to be released.

The head of the New York-based Center for Constitutional Rights, which represents dozens of prisoners at Guantánamo, hailed the ruling. “The Supreme Court has finally brought an end to one of our nation’s most egregious injustices,” Vincent Warren, the organization’s executive director, told The Associated Press.
Senator Barack Obama of Illinois, the presumptive Democratic presidential nominee, has called for closing the Guantánamo detention unit. So has his Republican opponent, Senator John McCain of Arizona, but the issue of what to do with the detainees could still figure prominently in the campaign, as Mr. McCain’s remarks on Thursday signaled.

Speaking to reporters in Boston on Thursday morning, Mr. McCain said he had not had time to read the decision, but “it obviously concerns me.”

“These are unlawful combatants, they’re not American citizens, and I think that we should pay attention to Justice Roberts’s opinion in this decision,” Mr. McCain said. "But it is a decision the Supreme Court had made, and now we need to move forward."

Mr. McCain, who was held for more than five years as a prisoner of war in Vietnam, was one of the chief architects of the Military Commissions Act of 2006. He argued during the drafting of that law that it gave detainees more than adequate provisions to challenge their detention.”

Justices Rule Terror Suspects Can Appeal in Civilian Courts - NYTimes.com

[lurkur]

I was about to post a story on this! Score one tiny point for human rights! You know the dissenting judges have something else influencing their opinion because otherwise they would never say that habeas corpus is a 'threat to Americans.' If anything, this will make us safer.

[tkdgirl]

Great. My tax dollars going to defend enemy combatants who aren't American citizens AND would like to see us all dead. Lovely. Russia had this one right. Take no prisoners and you won't worry about this crap. The terrorists are laughing their asses off because they are using our freedoms against us. I wonder if those who were beheaded, like Nick Berg, were treated in accordance with human rights before he was violently murdered?

[Grimmlok]

1) they havent been charged with anything

2) if your legal system is incapable of handling this situation, then it's not worth defending and real terrorists have already won.

3) the term "enemy combatant" was invented to make sure they could NOT be tried under US law or even international, and conveniently skirts the geneva conventions on prisoner treatment. The same reason they're held out of the continental united states where said laws would inherently come into effect. Sounds awfully SOVIET COMMIE PINKO doesnt it?

but i suppose it's fine when YOU do it. Im sure all regimes tell themselves that.

[tkdgirl]

No, what sounds utterly moronic is giving these fools the same judicial rights as me. Bullshit. But hell, just give them some food stamps, put them on welfare, bus them to NYC and put them on the streets. Let them join the rest of non-citizens who are afforded the same rights as citizens. All because we are 'civilized' and 'humane'. Better yet, Grimm. Just have Canada take them.

[Grimmlok]

Yes, welcome to the curse of pretending you have a moral compass. You actually have to put your vaunted ideals to the test.

I know, it's so hard to be better than a terrorist isnt it?

Jesus, no wonder your country is the way it is with that kind of mentality.

[tkdgirl]

Riiight. Grimm. Whatever you say. When it comes down to protecting Americans versus terrorists, guess which side I'm on? But since you're far superior in intellect, compassion and dignity, why not ask the Gitmo boys to come to Canada?

[Grimmlok]

Sorry, we're busy trying to extract our own citizen from that gulag, and it's proving pretty hard given the doctored evidence against him perpetrated by US forces.

Beacon of light my ass. More like black hole of hypocrisy.

If you can't upholdthe ideals your nation was founded on and purports to love (and invades other countries to apparently protect, despite the lack of a threat) then your whole society is one big fat stinking delusional lie isnt it.

[tkdgirl]

Our whole society is already on the verge of fucked up when we take care of people who aren't US citizens and treat them better than our own.

[Grimmlok]

How are they being treated better than your own?

How is access to a fair trial under your own laws BETTER than what the average american gets?

That's what your laws are there for. By refusing to try them with said laws, you admit they are incapable of carrying out justice.

RIght now they're being held, WITHOUT HAVING EVER BEEN CHARGED WITH ONE SINGLE CRIME, for all eternity, with no legal recourse.

That's FASCIST. Do you understand that? Imprisoning people, not charging them, holding them indefinitely, and denying them any way to defend themselves is FASCIST.

Maybe you like fascism (amazing, considering how crazy you get over "socialism") but i sure as hell dont.

[msdeb]

^^^what he said.

[visitor42]

That's FASCIST. Do you understand that? Imprisoning people, not charging them, holding them indefinitely, and denying them any way to defend themselves is FASCIST.

Exactly.

[lurkur]

No, what sounds utterly moronic is giving these fools the same judicial rights as me. Bullshit. But hell, just give them some food stamps, put them on welfare, bus them to NYC and put them on the streets. Let them join the rest of non-citizens who are afforded the same rights as citizens. All because we are 'civilized' and 'humane'. Better yet, Grimm. Just have Canada take them.

You obviously don't understand what habeus corpus is.

[Sasha]

Habeus corpus is the bedrock freedom upon which our country is founded, but it has also been a bedrock human right since the Magna Carta. Without this basic human right, we are all at the mercy of Kings and dictators.

tkdgirl, you keep saying "terrorist" as if you know for a fact that every single detainee at Gitmo is guilty. How do we know they are guilty? The gov't has not had to prove their guilt. Many of them have been picked up by greedy bounty hunters in their own countries. How would you like a bounty hunter to come into your home and turn you over to the gov't and have the gov't just decide, willy nilly, that you are guilty and they don't have to prove it in a court of law?

Habeus corpus forces the gov't to prove their claims or let the prisoner go. Under God, under the constitution, under simple human decency, the gov't has no right to hold people without charges and without recourse to the law. If you think this would stop at "foreign" "terrorists" you are sadly naive.

First, they came for the Jews....

[PaintTheTownRed]

I agree with everyone about the suspension of habeus corpus, I'm glad Kennedy came to his senses.