[Infowarrior] - SCOTUS:Terror Suspects Can Appeal in Civilian Courts

[Richard Forno]

June 13, 2008
Justices Rule Terror Suspects Can Appeal in Civilian Courts
By DAVID STOUT

http://www.nytimes.com/2008/06/13/washington/12cnd-gitmo.html?_r=1&hp=&oref=slogin&pagewanted=print

WASHINGTON — 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 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.