June 12, Civil Liberties Update: Harsh Rebuke for Bush Administration as Supreme Court Upholds Rule of Law

New York Times

Justices Rule Terror Suspects Can Appeal in Civilian Courts

June 13, 2008 (print edition), Washington, DC — 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 (June 12, 2008) 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.”

“The nation will live to regret what the court has done today,” Justice Scalia said.

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,” and in doing so had left itself open to accusations of “judicial activism.”

The chief justice said the majority had gutted the Detainee Treatment Act without really giving it a chance. “And to what effect?” he wrote. “The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date.”

Indeed, 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.”

Senator John Kerry of Massachusetts, the 2004 Democratic presidential nominee, applauded the ruling. “Today, the Supreme Court affirmed what almost everyone but the administration and their defenders in Congress always knew,” he said. “The Constitution and the rule of law bind all of us even in extraordinary times of war. No one is above the Constitution.”

Anthony Coley, a spokesman for Senator Edward M. Kennedy, Democrat of Massachusetts, said: “When Congress passed the Military Commissions Act in 2006, Senator Kennedy called the act ‘fatally flawed’ and said ‘its evisceration of the writ of habeas corpus for all noncitizens is almost surely unconstitutional.’ Today, the Supreme Court agreed, and rejected the Bush administration’s blatant attempt to create a legal black hole beyond the reach of the rule of law.”

Kate Zernike contributed reporting from Boston.

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