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Supreme Court Says Guantanamo Detainees Have Right to Challenge Detention
Scalia in dissent: 'The nation will regret what the Court has done today'
Legal Times
June 13, 2008
Supreme Court Justice Anthony Kennedy
Image: Diego M. Radzinschi/Legal Times
The Supreme Court on Thursday rejected the latest effort by the Bush administration and Congress to deny Guantanamo detainees the right to appeal their imprisonment in U.S. courts.
In a dramatic decision in Boumediene v. Bush that divided the Court 5-4, the justices struck down parts of the 2006 Military Commissions Act that stripped U.S. courts of jurisdiction over the habeas petitions filed by foreign nationals detained at the Guantanamo Bay facility in Cuba. The ruling ordered swift habeas hearings for the detainees.
Within hours of the decision, Royce Lamberth, chief judge of the U.S. District Court for the District of Columbia, where the petitions are pending, said, "I expect we'll call in the lawyers from both sides to see what suggestions they have for how we can approach our task most effectively and efficiently." As many as 200 detainees have habeas petitions pending, many of which were being held in anticipation of the Boumediene decision.
The Justice Department declined comment, with a spokesman saying the complex decision was still under review. At a press conference in Rome, President George W. Bush said, "We'll abide by the Court's decision. That doesn't mean I have to agree with it." Bush said further legislation might be considered.
Even though the decision's margin was narrow, its scope should "mark the beginning of the end of the military commission process," said Steven Shapiro, legal director of the American Civil Liberties Union. Those commissions, Shapiro said, allow "the use of coerced evidence and hearsay and thus cannot survive the constitutional scrutiny that today's decision demands."
Justice Anthony Kennedy provided the crucial fifth vote as well as the majority opinion that constituted the third high court rebuke of Bush administration detainee policies. He read at length from the decision at the Court's morning session before a sparse summer audience. Deputy Solicitor General Edwin Kneedler was in court to listen as the government's position was rebuked. Former Solicitor General Paul Clement, who quit last week, had argued Boumediene, telling the justices last December, "The political branch has spoken."
But the Court, as it has before, replied Thursday in effect that the judicial branch has the final word, even in matters that veer close to the conduct of war, a function usually left mainly to the commander-in-chief. "The exercise of those powers is vindicated, not eroded, when confirmed by the judicial branch," Kennedy wrote.
In his 70-page opinion, Kennedy offered a lengthy review of the history of habeas corpus and whether its reach extended beyond U.S. borders. Anticipating that some might think the history lesson was unnecessary, Kennedy wrote, "Remote in time it may be; irrelevant to the present it is not."
Kennedy continued, "Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles."
Addressing concerns about national security, Kennedy said, "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law."
Kennedy concluded that the administration had yet again gone too far in restricting civil liberties even in wartime. He cautioned that the ruling does not necessarily mean that the detainees will be freed.
The Court went further, ruling as well on the merits of whether the alternative method devised by Congress in the Detainee Treatment Act to deal with detainee appeals. Noting that some detainees have been held for six years, the majority agreed that it should not bounce that issue back to lower courts. Because of procedural inadequacies, the Court ruled that the alternate review process created by Congress amounts to "an unconstitutional suspension of the writ" of habeas corpus. "The costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing."
The dissenting justices -- Chief Justice John Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel Alito Jr. -- listened impassively as Kennedy read from his opinion.
But then Scalia read from his bitter dissent. He wrote that the Court's decision "will almost certainly cause more Americans to be killed," apparently because it will result in dangerous detainees being released. Scalia cited news reports that some of the detainees that have already been released have returned to the battlefield and been involved in suicide bombings and other hostile acts. "The decision is devastating."
Scalia said that for the first time, military commanders would now have to undertake "the impossible task of proving to a civilian court, under whatever standards the Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The nation will regret what the Court has done today. I dissent."
Roberts also authored a dissent, criticizing the majority for dismissing out of hand the considered efforts of the other branches to respond to prior Court rulings. The chief justice concluded that "this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants."
The ruling, said Roberts, did nothing to advance the rule of law, "unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants."
Advocates for the detainees and civil liberties groups were joyful that even under the solidly conservative Roberts Court, they were able to win a sweeping victory.
"Today's 5-4 ruling by the U.S. Supreme Court is a complete victory not only for our clients but for all Americans and citizens the world over, and, most importantly, for the rule of law," said Pillsbury Winthrop Shaw Pittman lawyer David Cynamon in a statement. He is lead counsel for Khaled Al Odah, one of the detainees in the case. "The decision is a powerful expression of the principle that the Constitution applies even, and especially, in times of war and crisis, and that our Constitution does not allow the creation of a legal black hole like Guantanamo."
American Bar Association president William Neukom says the ruling "helps restore the credibility of the United States as a leading advocate and model for the rule of law across the globe." He adds, "Habeas corpus is the cornerstone of the rule of law in the United States. Adhering to this fundamental tenet of our legal system will simply require that we provide a fair process for determining which detainees should continue to be detained. U.S. courts have risen to the challenge of hearing cases involving national security for more than 200 years. They can and will continue to do so."
