Supreme Court: Gitmo Detainees Have Habeus Rights
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.
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.
Great. Who were the five activist justices that sold out this country’s freedom for evil?
These people should be extraordinarily renditioned immediately.
Y’know, I’ve never really agreed with Scalia on, well, anything before, but now I’m actively beginning to loathe him.
What a filthy, cowardly, fearmonger. For one thing, he doesn’t have the vaguest idea what will make the “war” harder. For another thing, how exactly could admitting that all humans – even our enemies – have basic human rights possibly endanger this country? What a disgrace to the bench. I really want to kick him in the junk.
My thoughts exactly, the Constitution doesn’t exist to make fighting a war easy, it exists to keep us free.
Why are liberals so violent?
So, 9/11 wasn’t an invasion?
And Scalia’s quite correct, Legion.
It’s the pacifists in them.
Not by any definition I know of.
He’s correct that it might make the fight harder. He’s not correct in that being a valid consideration on the legality of Habeus.
Well, let’s try:
Note reference one, particularly. Note closely, please, that the definition is not exclsuive to an army
And Scalia is correct on ALL counts.
I’m with Ed on this one. Are we going to be reading these bastards Miranda rights? And will the left be satisfied at this point?
The notion that the rule of law doesn’t apply equally to all, irrespective of citizenship, is a peculiar and unique fomulation of the American extreme Right. No other nation in the free world gives it any credence whatsoever – indeed the rest of the free world sees such a view as a slap in the face of the principles of just law. It’s really just that hoary old American exceptionalist Divine Mandate chestnut dressed up in constitutional drag and should be called out as such.
And next the law of unintended consequences will kick in. Rather than take prisoners who will tie up our courts for years, the military will simply shoot them on the battlefield.
Works for me.
That sounds like you accept the constitution as a suicide pact.
Mohammad El Gharani was just 15 when he was arrested at a Mosque in Karachi and sent to Guantanamo.
Since his arrival six years ago he has been kept in solitary confinement in a cell 2 feet by 6 feet with nothing other than a mat for sleeping, a Koran and toilet paper.
He has attempted suicide on seven separate occasions, and has never been allowed to speak to any member of his family.
No one can say when he will be released, if ever.
To this day, he has not been charged with any crime.
Makes you proud to be an American, doesn’t it.
You beat me to that one, Sean. It’s exactly what I’ve been thinking.
I’m not a knee-jerk “security at all costs” guy. I want the military to be allowed to do their job in defeating the enemy while not trampling on U.S. citizens’ rights. From my limited, myopic experience I haven’t seen the U.S. become a dictatorship because there are prisoners in Gitmo. That’s unlike the screams I hear from a lot of Bush bashers who think America has gone to hell in a hand basket because of “King George.”
I worry about the Law of Unintended Consequences and the further legalizing of the military. It seems we’re on a path where every platoon will need a lawyer just in case they capture a prisoner. The alternative being they simply shoot them.
But by the first definition, the 9/11 hijackers would need to be committing an act of invasion. Since there were here legally, and the fact that they did not stick around after their attack, I think that would be a hard case to make. Not every attack is an invasion.
There’s a pretty significant difference between accepting that the constitution makes the prosecution of an enemy harder, and accepting defeat in order to follow it. I firmly believe that we will be victorious in the War on Terror even if we allow detainees to challenge their detention in civilian courts, therefore it is not suicide to follow the Constitution in this case.
The constitution makes every crime significantly harder to prosecute, if we allow that justification for “enemy combatants” now, where will be draw the line?
Bithead, do you believe that having to inform people of their legal rights is a bad thing?
Mr Hackbarth: “That sounds like you accept the constitution as a suicide pact.”
Yeah, because other nations have such problems getting terror convictions even though they allow habeas rights – and the entire populace of such nations is being decimated by daily terror attacks.
Are you sure about those dimensions?
So you think it is a bad thing to inform non-citizens of their legal rights under our laws?
I’ve not read it yet, but Scalia’s statements mean a lot to me given his opinion in Hamdi that he admitted may not give the government the tools it needs to fight this new type of war.
1) Scalia is, and always has been, a douche. He’s certainly smart enough to know that “war” is defined such as it only exists between states, not between states and non-state groups. So he’s lying through his teeth when he tries to say that the US is legally at war with Al qaeda.
Scalia’s sole gift is an intermittent rhetorical capacity that can *almost* make his inane thoughts sound reasonable. For a short while. Other than that he’s an utter bimbo with a short temper and fascist tendencies.
2) Why is it the same people who say “the constitution is not a suicide pact” who also like to quote Patrick Henry’s “give me liberty, or give me death” and do they really not understand the inherent irony?
3) It is good to see Roberts being exposed more and more for what he is- a tool. Alito was obviously a tool, Roberts just kept it better hidden.
This should have read 12 ft x 6 ft, no windows, no natural light or air, in which he has been kept 22 hours a day, for the last six years. And why? We have no idea because he has never been charged.
And to think three of the most senior judges in the land think this is fine.
Today’s decision marks the beginning of the journey back from the very dark place the Bush admin abandoned the country to.
That sounds more probable, thanks.
That depends on out answers to several questions.
* Are they HERE in the US?
* Are they part of a group that has declared war on us?
* HAve they attacked us?
* Are they state actors, or merely whackjobs on a mission?
THere’s a number more questions, but you get the idea.
Perhas another clue is in order;
If they’re captured outside the US our laws do not apply.
“* Are they HERE in the US?”
– They are now.
“* Are they part of a group that has declared war on us?”
– How would we determine that without a fair trial?
“* HAve they attacked us?”
– Please clarify if “us” refers to American civilians, or American soldiers in a combat zone.
“* Are they state actors, or merely whackjobs on a mission?”
– Given the borderless-state nature of Al Qaeda and other distributed terrorist organizations, I’m not sure how you would classify them, or why it would make a difference.
Until they are brought to where US laws do apply.
OK, lemme go over a couple of things here. First of all, there are plenty of basic human rights that a) apply to _all_ human beings, regardless of citizenship and b) are defined in places other than the US Constitution.
For another thing, while it could make prosecuting and ultimately punishing terrorists slightly more difficult, nobody has yet even attempted to address how this could conceivably get more Americans killed, as Scalia pants-wettingly states. Hell, if they take longer to fight the accusations in US courts, that’s even _more_ time they’ll stay locked up & off the streets, right?
And one final note – yes, I’m sure there are some truly evil bastards in Gitmo that mean to do the US harm. I am also certain there are innocent people there, who were in the wrong place at the wrong time. Treating every single one of them as guilty until proven innocent, locking them in solitary for literally years without any outside contact or even basic information about what they’re accused of, let alone a half-assed chance to defend themselves from those accusations, is inexcusably immoral. It is evil. And it disgraces us as a nation.
And as Michael correctly notes – these are people who have been ACCUSED of things. They were rounded up, often in bad places, and many of you consistently treat that as proof of guilt. It ain’t.
Perhaps not, though some would say that it is preferable to die standing for your principals than to live crawling away from them.
In any case, even conceding that the constitution is not a suicide pact, neither is something as hard to define at the “war on terror” a grant of unlimited powers to the government…
Why is it that when people point to the dictionary to attempt to justify their use of a term, they always seem to focus on either an obscure meaning, or, in this case, minimize a qualifying referent that every other English speaker on the planet understands as inherent in the term. Please note that the term “especially” means “with particular emphasis” and not “well, whatever. Take it or leave it.”
In addition, further scrolling at the same site (dictionary.reference.com), one finds this (from Wikipedia):
“An invasion is a military action consisting of armed forces of one geopolitical entity entering territory controlled by another such entity, generally with the objective of either conquering territory, altering the established government, or a combination thereof… .
“The term usually denotes a strategic endeavor of substantial magnitude; because the goals of an invasion are usually large-scale and long-term, a sizeable force is needed to hold territory, and protect the interests of the invading entity. Smaller-scale, tactical cross-border actions, such as skirmishes, sorties, raids, infiltrations or guerrilla warfare, are not generally considered invasions.”
The meaning of the word invasion is plain and conceptually clear. To say, then, that the 9/11 attacks constitute an invasion and therefore justify the suspension of habeas corpus (as outlined in the Constitution) is preposterous on its face.
Bithead, this has to be one of your weakest excuses for justifying an opinion. Surely you can come up with some better reasons for suspending the Constitution than a tortured (oops, did I imply torture?) and strained interpretation of the word “invasion.”
A bold statement Eric. Bit’s collection of weak excused consumes terabytes of storage…
Simple; You don’t. You’re involved in a war.As you yourself suggest in the very next snark.
SO, Why aren’t US soldiers allowed access to civilian courts?
That’s one definition.Are we to accept that one over the ones I provided, for any reason other than the one you provide backs your position?
You mean I trust a dictionary? Pass over a little of what you’ve been drinking, OK?
Ah, but you see, I didn’t. The dictionary does that, and for all to see. Welcome to ‘words mean things’.
Yes. Grammarians call that “context,” i.e., the particular circumstance that helps clarify the meaning of the word. I mean, I assume the 9/11 attacks were not a plague of locusts, or an overwhelming disease, or a throng of tourists at a resort. Therefore, I think I’m on pretty safe ground to say that the definition I cited is the one that is most contextual and is thus correct.
Reading a dictionary is one thing. Applying the right meaning to a word is another. You have to be good at both, not one out of two. 🙂
The dictionary merely lists various (and variant) meanings of words, but here’s the key: not all meanings apply in every context. Sometimes there’s a usage note–for example, oh, i don’t know, like, say, the one I cited for “invasion” that you left out–but most of the time you have to use your own noggin and divine the meaning of the word by its–wait for it–context.
Well, of course words mean things Bithead, and meaning is derived from… context.
Yeah, well, let’s provide a little context.
Ex Parte Quirin
My comments on that aspect,here.
Why do you think that today’s decision does not also apply to POWs?
Because the term POW has a very specific, legal definition. That definition, and the treatment POWs must have, is laid out in the Geneva Conventions – specifically, the 3rd Convention (1949). Basically, there are already laws in place to handle individuals who meet the criteria of POWs, and today’s ruling, since it didn’t declare the GC to be unconstitutional, doesn’t change that.
Perhaps one of the lawyers among us can answer the question:
What has changed since Quirin that the rulings on so similar a condtion, are so vastly different?
How shameful that the Supreme Court has to announce “Oh yeah, people have rights, sorry about that.” The embarrassment of the legal system by the entire Gitmo/Guantanamo scenario is a part of our history that will haunt us like the interment camps in World War II. Will the administration abide by the Supreme Court though, that’s the question.
There is nothing in the rationale for yesterday’s decision that limits it to “unlawful detainees” or exempts POWs (per Geneva Convention definitions) from it. All that is required is that someone be in captivity, and that such captivity be under the effective, practical control of the U.S. government (such that if it wished, the government could effectively relocate the captive elsewhere; that includes essentially anyone ever captured by U.S. troops fighting abroad).
Anyone being held prisoner by the U.S. government, anywhere in the world, no matter their citizenship, no matter the circumstances of their capture, now enjoys rights under the United States Constitution and may enforce those rights via writs of habeas corpus filed in the civilian courts of the United States. The only exception admitted by Justice Kennedy’s opinion is for those in the first few hours, or perhaps days, after their capture, while they’re receiving their initial processing.
This decision gives rights under the U.S. Constitution to all those foreign terrorists most devoted to destroying the U.S. and its Constitution, so long as they’re captured by U.S. government forces. That’s no overstatement. That’s exactly what it does. You must grasp that before you can possibly grasp the seriousness of this decision.
legion: By the way, the grounding of today’s decision is supposedly the Constitution itself. “Laws already in place” to deal with detainees were swept away as unconstitutional by the back of the five-Justice majority’s hand. Laws dictating what would happen to POWs would be too.
Unless one is going to argue that the Constitution allows people to carry out terrorist attacks against us, I fail so see how this is a bad thing.
Leagally speaking? Of course not it doesn’t.
Functionally, on the other hand is a whole ‘nother thing. Here’s one situation where the gap between reality and the best of intentions formed into law, are the farthest apart one may possibly imagine.
I think the court has helped to put another nail in our coffin.
Okay the, please explain how, “functionally”, applying Constitutional protections to terrorists allows them to harm us.
This is a fairly simple issue. If we stop being a nation that cherishes the rule of law, Bin Laden wins. It means he destroyed America on 9/11.
I understand it all right. Let me go back to an earlier aside from Bithead –
Actually, they are. There’s no legal or Constitutional construction that requires a separate military legal system – any court martial could be brought over to the federal system, though I forget if that can be done directly or only via appeal. It doesn’t happen because the civilian courts have a long-standing policy of deferring to military courts in handling military issues. In the other direction, I have seen a number of legal issues, from DUI to child pornography, where the military has been happy to let the civilian system do the work, and then just follow up with their own administrative punishments afterwards to ensure the individual (if guilty) is bounced out of the service.
The short version is that alternative legal avenues, like the military justice system, are there because it’s hasn’t been so egregiously biased & unlawful that the courts have seen fit to step in & say “no, we’ll be handling that – you can’t be trusted”. The current system the DoD has set up to deal with detainees has always had troubling issues and unanswered questions about its legitimacy, and this is the courts’ way of raising a red flag & saying “you’re going the wrong way – come back this way or we’ll shut you down”.
Y’know, I still don’t get the train of thought of some posters here. As Michael points out, how does extending Constitutional principles to every POW, “enemy combatant,” or whoever allow them to kill us more? If you believe that, then you must, by your own tortured logic, admit that the same threat obtains from, say, a good, old-fashioned, garden-variety American serial killer. After all, if we let serial killers avail themselves of the Constitution, then we’re just giving them a chance to kill more Americans–another nail in the coffin, eh Bithead?
I mean, I can’t tell you how often I hear and read about how Americans think our justice system is the best in the world, how other countries should emulate us; but when it comes to stupid terrorists, suddenly you guys wanna go run and hide in your closets because–oh my god!–if detainees get to challenge their detainment, they’re going to somehow mysteriously kill us all.
I am a firm believer that the American justice system can handle it. It’s worked for us quite well for over 200 years, thank you. Why suddenly must we scrap basic justice (i.e., habeas corpus, due process, etc.)? If you want that, then we might as well just stop pretending and go right to the Soviet show trials of the 1930’s and ’40’s.
Seriously, what are you scaredy-cats afraid of? Grow some nuts. You seem to have plenty of them when arguing for more and better War. Where are they now when it comes to confidence in your own justice system that is the envy of the world?
When you are on your knees, being converted at the point of a sword, you will be very, very sorry you supported this freedom bs…
Shorter Bithead: “I crap my pants every time someone says 9/11. I expect the US to surrender any day now. I will convert to Islam immediately when this happens.”
Shorter Beldar: “I hear stuff about the law when I golf with judges. Alarmist hyperbole works with juries, so I’ll use it everywhere else.”
I’d give Beldar a bit more credit than that.
McCain and Political Pundits are not mentioning the fact that the recent Supreme Court ruling concerning the due process rights of government detainees is not so much about foreign enemy combatants; rather it is about all possible enemy combatants. What the American public does not realize nor have they been told is that any American Citizen can be designated an enemy combatant by the White House on nothing more than mere suspicion. So the issue is can the right of the due process of law that is guaranteed by the constitution be denied. Can an American have their right to hear the evidence against them, the right to a speedy trial by a jury of their peers, the right to access to legal council, and all the other due process aspects afforded them? We had better have those rights. But before the Supreme Court ruling foreign suspected enemy combatants and suspected American enemy combatants had no right to constitutional equal protection of law. The President had thrown out the right to be proven guilty beyond a reasonable doubt and replaced it with guilty by suspicion without due process. As well anyone American or foreigner could be held forever with out first being proven guilty of being an enemy combatant. The treatment of all potential enemy combatants meant that all American Citizens had lost the equal protection of the law and the protection of the principle of due process of law. That is what is so conveniently left out of the conversation. What a shame that pundits are leaving out the important details which would allow Americans the ability to decide why the Court ruled the way they did.