The Supreme Court restores habeas corpus

June 14, 2008 | By | 8 Replies More

In a 5-4 decision, the U.S. Supreme Court has ruled against the government in the case of Boumediene v. Bush, finding that the detainees at Guantanamo Bay have the right to file habeas corpus petitions in federal court. This decision strikes down a key section of the Military Commissions Act, the horrible piece of legislation passed by Congress in October 2006 that sought to condemn detainees to indefinite imprisonment with no real right to challenge their detention.

The MCA provided only for “Combatant Status Review Tribunals”, a farce trial that makes a mockery of the protections given by the Constitution to an accused person. Detainees are tried before military officers, rather than neutral judges. In these tribunals, they have no right to a lawyer, they can be barred from seeing the evidence against them, and they cannot call witnesses in their defense. In a number of cases, when the first CSRT concluded an inmate was not an enemy combatant, the government simply ignored the ruling and convened a second one to reach the decision it preferred.

These inquisitorial, rigged “trials” give further evidence of why the writ of habeas corpus is so vitally important. For over 700 years, it’s protected people against arbitrary and capricious imprisonment by their government. By forcing the government to publicly show the reasons why it has detained someone before a neutral magistrate, habeas corpus turns imprisonment into a tool of justice, rather than a tool of tyranny.

The U.S. Constitution provides that Congress may suspend habeas corpus, but only in cases of “rebellion or invasion”, when it is vital to protect public safety. Clearly, neither of these conditions is in effect at the moment. Thus, the MCA’s suspension of habeas corpus for detainees was unconstitutional, and the Court was absolutely in the right to strike it down.

The prisoners at Guantanamo Bay have been in detention, in some cases, for over six years without ever being given the chance to prove their innocence. The Bush administration’s attempt to put them into a legal black hole, beyond the reach of all law, is anathema to everything the American justice system stands for. It’s long overdue that this injustice was corrected. If any of these detainees are terrorists or have committed war crimes against the United States, then let the government prove that in a court of law. Our justice system has served us well against those who would harm us for over two hundred years, and it will continue to do so. On the other hand, if any of these detainees are innocent – a very likely circumstance, given the dragnet-like way in which they were swept up – then their detention is an outrageous evil, and they should immediately be released.

Justice Anthony Kennedy, who wrote the majority opinion, concluded that neither the President nor Congress may “switch the Constitution on or off at will“. The Court rejected the legal fiction that, because Guantanamo Bay is technically part of Cuba, the detainees have no recourse under the U.S. Constitution.

This is a great victory for due process and for the American legal system, and a bright day for friends of liberty everywhere. The only dark spot on this decision is that it was by a narrow, 5-to-4 majority. (Scalia’s dissent begins “America is at war with radical Islamists” and goes on to cry about how the terrorists will kill us if we don’t lock people up indefinitely with no trial. I am not joking.) If John McCain is elected president and has the chance to make the next few appointments to the Supreme Court, the fragile constitutional bulwarks which still stand against arbitrary government power will be in extremely serious jeopardy.


Category: Civil Rights, Current Events, Law, law and order, Politics, War

About the Author ()

I'm an author, skeptic and computer programmer living in New York City. I'm also an unapologetic atheist, and believe passionately that freethinkers deserve a much stronger voice in our culture than they've been given in the past. Since politicians and the mainstream media aren't willing to give us that, it falls to us to take our case directly to the public. Both on my own weblog, Daylight Atheism, and here on Dangerous Intersection, I hope to be able to spread the good news of freethought!

Comments (8)

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  1. Jack Walsh says:

    Nice. What some people (John McCain, Bush, most conservatives) don't understand is that it is not the job of the Supreme Court to save American lives. The job of the Supreme Court is to uphold the constitution, even if the consequence is another 9/11. If the constitution is endangering lives, Congress has ways of dealing with that, not the Supreme COurt.

  2. Azkyroth says:

    They understand that, Jack. They just figure (often correctly) that their constituents don't.

  3. Katie says:

    It is very relieving to see this horrible affront to freedom being recognized for the unconstitutional garbage it is. I sincerely hope the military takes measures to make things right for those it has wrongfully imprisoned, tortured, and terrorized, but I doubt they will do much, if anything, for any innocents released from this modern-day Auschwitz.

    The mind reels at what it must be like to be rounded up like so many cattle from one's home, as one's family's terrified screams grow distant, as one's own voice is hoarse from crying, as one is sent across an ocean to be locked up with terrorists, denied anything resembling a trial, fed on the meagerest semblances of sustenance, for years on end.

    The depth of this injustice defies measurement, and it is appalling that it took two years to undo this law that never should have passed in the first place. I count every drop of blood shed in Guantanamo and by the families of innocent prisoners on the hands of the administration that, crippled by fear and blinded by prejudice, loosed such a despicable affront to freedom on the world.

    And, indeed, the minimal margin of victory in the Supreme Court is a testament to the position of the nation. This knife's-edge balancing act cannot long sustain itself, and my worst fear is that of a disturbed nation electing another disturbed President, and forcing us off the wrong side of this precarious situation.

    I guess, come November, we will know the fate of this nation and, thus, the world. I for one think it's about time for another JFK, not another GWB.

  4. Erich Vieth says:

    This, from Andrew Sullivan:

    The United States never tortured and abused Nazi POWs the way we have tortured and abused and murdered many innocent detainees in American custody in this war. This is not slandering America, as this president would have it. It's the God-honest truth.

  5. Erich Vieth says:

    From McClatchy News today:

    The U.S. military hid the locations of suspected terrorist detainees and concealed harsh treatment to avoid the scrutiny of the International Committee of the Red Cross, according to documents that a Senate committee released Tuesday.

  6. Erich Vieth says:

    Ebonmuse: As I read your well-written post, I kept thinking about that famous quote by Justice Louis D. Brandeis: "Sunshine is the best disinfectant."

    Whatever is going on in these misbegotten military kangaroo courts needs to be made more visible. We need cameras in those faux courtrooms to allow Americans to see the brand of justice that prohibits the accused from seeing the evidence or from calling witnesses in his or her defense. The government should be made to install webcams all over Gitmo (and at all of the other torture centers) so that we can see how our own government employees are treating prisoners. We need to see this treatment sufficiently often that we become sickened enough by it that we will pick up our phone or write a letter or attend a march.

    What the Bush Administration is doing is insanity. The fact that this SCOTUS decision was only 5 to 4 is equally insane. This was an obvious call in favor of the prisoners.

    At least now, in light of Boumediene v. Bush, some of the prisoners will have at least a chance that a neutral judge will consider their plight “out in the sunshine” of a real courtroom.

  7. Sergio Tursi says:

    These detainees are not American. They distain what America stands for. What right do they have to our Consitution, the same Consitution they wish to rip up. The same words which they condem. This is war, and war is hell on earth. It is not all right for another 9/11. It is the job of our leaders to protect us from that. There is no candidate which is a JFK!! JFK would do the same to protect this Nation. Our own military go through the same court, if it is good enough for them then it is good enough for those detainees. This is an enemy which would chop off your head before giving you a trial, and you want us to give them a court appionted lawyer. We should spend our tax dollar on them. They are POW's not citizens!!!

  8. Erich Vieth says:

    Sergio: I would bet that some of the people in Guantanamo are as you have described them.

    As for most of them, though, we don't know what they stand for and we don't know what they've done. The federal government is doing its best to make sure that we don't know how many of these people have done anything that threatens America.

    There is credible evidence that

    most of the detainees are not Afghans and that most were not picked up on the battlefield in Afghanistan. The vast majority were instead captured in Pakistan. Seventy-five of the 132 men are not accused of taking part in hostilities against the United States. The data suggests that maybe 80 percent of these detainees were never al-Qaida members, and many were never even Taliban foot soldiers.

    Here's another account:

    What evidence do you have to back up your across-the-board conclusion that all of the prisoners at Guantanamo have tried to damage America or Americans in any way?

    If you don't give them some sort of unbiased hearing, we'll never know whether they belong at Guantanamo. Or at least that's the way I see it in my evidence-based way of thinking.

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