Terrorist suspects detained at Guantánamo Bay (and presumably, anyplace else under American jurisdiction) have the right to file habeus corpus petitions in U.S. civilian courts the Supreme Court ruled today in a 5-4 decision. Further, Congress could not pass a law waiving these protections absent rebellion or invasion.
Justices Rule Terror Suspects Can Appeal in Civilian Courts (David Stout, NYT)
“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.
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 rule that some court-watchers had foreseen. Joining Justice Kennedy’s opinion were Justices John Paul Stevens, Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.
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 court.
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.
[…]
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.
High Court ruling may delay war crimes trials (Mark Sherman, AP)
es were in the majority.
Justice Anthony Kennedy, writing for the court, said, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” Kennedy said federal judges could ultimately order some detainees to be released, but that such orders would depend on security concerns and other circumstances.
[…]
It was not immediately clear whether this ruling, unlike the first two, would lead to prompt hearings for the detainees, some of whom have been held more than 6 years. Roughly 270 men remain at the island prison, classified as enemy combatants and held on suspicion of terrorism or links to al-Qaida and the Taliban.
The ruling could resurrect many detainee lawsuits that federal judges in Washington put on hold pending the outcome of the high court case. The decision sent judges, law clerks and court administrators scrambling to read Kennedy’s 70-page opinion and figure out how to proceed. Chief Judge Royce C. Lamberth said he would call a special meeting of federal judges to address how to handle the cases.
The decision also cast doubt on the future of the military war crimes trials that 19 detainees are facing so far. The Pentagon has said it plans to try as many as 80 men held at Guantanamo. The lawyer for Salim Ahmed Hamdan, Osama bin Laden’s one-time driver, said he will seek dismissal of the charges against Hamdan based on Thursday’s ruling. A military judge had already delayed the trial’s start to await the high court ruling.
[…]
The court said not only that the detainees have rights under the Constitution, but that the system the administration has put in place to classify them as enemy combatants and review those decisions is inadequate.
[…]
In dissent, Chief Justice John Roberts criticized his colleagues for striking down what he called “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” Justices Samuel Alito, Antonin Scalia and Clarence Thomas also dissented.
Scalia said the nation is “at war with radical Islamists” and that the court’s decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.”
I fear Scalia is right on that score. That’s not, however, sufficient reason to abandon our most fundamental principles.
I’ll withhold final judgment until I’ve had time to read the opinion (which is over 70 pages!) and the dissents. I view this case in a different category than those dealing with U.S. citizens, which I considered slam dunk violations of the Constitution. Foreign nationals, especially those captured abroad, have less protection under the Constitution. Indeed, offhand it seems to me that our treaty obligations (Geneva, etc.) are a better basis for adjudicating these matters than the civil courts.
Lyle Denniston observes,
In a second ruling on habeas, the Court decided unanimously that U.S. citizens held by U.S. military forces in Iraq have a right to file habeas cases, because it does extend to them, but it went on to rule that federal judges do not have any authority to bar the transfer of those individuals to Iraqi authorites to face prosecution or punishment for crimes committed in that country in violation of Iraqi laws.
I was momentarily apoplectic until I re-read it and saw the “U.S. citizens” part. With that modifier, it’s a no-brainer.
Aside from whether the Justices got the law right, Cernig‘s public policy take strikes me as quite right:
Some very bad people are likely to walk free along with the innocent because the Bush administration tried to walk around domestic and international principles of law, creating an entirely spurious new designation of “unlawful combatant” so that they could either hise detainees from due process indefinitely or, failing that, conduct kangaroo courts.
If they’d just stuck with the existing definitions, all the Gitmo detainees against whom they could build a real case under the actual rules of law, without torture and without rigging the courts, would have been tried as POW’s already. If found guilty, the death penalty would have been warranted in some cases. I would personally have had no problem with that.
Me either.
Kevin Raybould is more succinct:
If these people are prisoners of war, then treat them as such. If they are not, then they are criminals and should be treated the same as every other criminal in the care of the federal government. Inventing a third class of people that the executive gets to do with as they please cannot be an option under our constitution.
Most excited reactions:
- Damozel: “[A]nyone who can’t decide whether they hate the thought of an Obama presidency more than a McCain presidency needs to think long and hard about the implications of this 5-4 split. Federal judicial protection of individual rights, and individual privacy — and not only those of enemy combatants — are already hanging by a thread.”
- Michelle Malkin: “What’s that sound? The thunder of left-wing lawyers and Gitmo detainees jumping up and down for joy at the Supreme Court’s ruling this morning.”
- John Hawkins: “[T]his decision has nothing to do with the Constitution and everything to do with liberalism’s unending sympathy towards any enemy of our country.”
- Debbie Schlussel: “[T]he Supreme Court has announced to world that every terrorist, no matter how bent on destroying America–and regardless of whether or not the terrorist had any contact with American soil–now has a right to their own three ring court circus, MC’d by some ringmaster clone of Judge Ito and attended by his/her posse of O.J. jury replications”
Other reax (lawyers up front):
- Orin Kerr: “Nothing I’ve seen in the Court’s opinion so far is at all surprising, and it’s a big defeat for the Bush Administration.”
- Steve Bainbridge: “I take Scalia’s point and have some sympathy for the position. After all, the Constitution is not a suicide pact. Yet, I am reminded of Benjamin Franklin’s aphorism that those who give up an essential liberty for temporary security deserve neither liberty or security.” He’s also interested that SCOTUS simply ignored Congress’ taking away their jurisdiction on this — which the Constitution gives them a plenary right to do.
- Marty Lederman: “[B]ecause the Government chose to detain these prisoners at GTMO for the very purpose of avoiding a judicial check on the legality of the detentions, the Court will ensure that the constitutional guarantee extends to the naval base.”
- Armando: “Apparently, the Supreme Court agreed with me and disagreed with the DC Circuit Court of Appeals.”
- Ed Morrissey: “It seems absurd to apply criminal law to unlawful combatants captured during hostilities abroad. Will they require a Miranda reading, too?”
- Sean Hackbarth: “From my plain reading of the constitution I don’t see that it applies to non-U.S. citizens. . . . I think war-fighting has already gotten too legalistic with military leaders asking lawyers to approve actions to cover themselves.”
- John Cole: “ACTIVIST JUDGES! ACTIVIST JUDGES!”
- Matt Yglesias: “I bet all those dirty hippies who said that John Roberts would be another Scalia feel
sorry nowcompletely vindicated.”
- Radley Balko: “I guess the only question now is whether the administration feels it’s actually obligated to abide by the decision, or if it believes the president’s absolute power in wartime means that in addition to ignoring Congress, he can ignore the Supreme Court, too.”
memeorandum, doubtless, has even more links.
