Setback for Bush’s Guantánamo policy

June 16, 2008

Nicole Colson explains what the Supreme Court decided--and didn't decide--in its ruling on the rights of Guantánamo detainees.

IT'S OFFICIAL: The Constitution applies to detainees in the war on terror.

In a narrow victory for civil liberties, but a big blow to the Bush administration's policies, the U.S. Supreme Court ruled 5-4 June 12 that prisoners of the U.S. "war on terror" being held at Guantánamo Bay, Cuba, have the right to be heard in U.S. courts.

The ruling in Boumediene v. Bush concluded that portions of the Military Commissions Act of 2006 are unconstitutional because they strip prisoners of the right to habeus corpus--their ability to challenge detentions in court.

The Bush administration has long argued that prisoners of war on terror aren't entitled to such protections, and that the threat of terrorism in a time of war necessitates a different system of trials for detainees. Instead of regular trials, the administration maintained that detainees' legal rights were satisfied by a system of Pentagon reviews called "combat status review tribunals" (CSRTs), put into place in 2004 and codified into law with the Detainee Treatment Act of 2005 and Military Commissions Act of 2006.

Detainees sit in a holding area at Camp X-Ray at the U.S. Naval Base in Guantánamo Bay, Cuba, on January 11, 2002.
Detainees in a holding area at Camp X-Ray at the U.S. naval base in Guantánamo Bay

As defense attorneys point out, however, the CSRTs are inherently biased against detainees, who are given no right to present witnesses or to cross-examine government witnesses, are often denied the right to see the evidence against them and frequently lack defense counsel.

In the vast majority of cases, the CSRTs simply rubberstamped prisoners as "enemy combatants" in order to justified their continued indefinite detention in Guantánamo without further review by civilian courts. The Supreme Court ruled that the CSRT process is an inadequate stand-in for the right of a prisoner to challenge his detention in civilian court.

"The Supreme Court has finally brought an end to one of our nation's most egregious injustices," said Vincent Warren, executive director of the Center for Constitutional Rights (CCR), which represents many Guantánamo detainees. "By granting the writ of habeas corpus, the Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation's founding.

What else to read

The Center for Constitutional Rights Web site has a compilation of news articles and information about detainees and their cases, including the most recent Supreme Court rulings.

The American Civil Liberties Union Web site contains legal updates and information about the "extraordinary rendition" program, as well as a database of government documents released under the Freedom of Information Act.

Moazzam Begg's Enemy Combatant: My Imprisonment at Guantánamo, Bagram and Kandahar documents his three years of wrongful imprisonment at U.S. detention centers in Afghanistan and Guantánamo. You can read or listen to Begg's two-part interview with Democracy Now's Amy Goodman.

"With habeas, you never would have had these men--so many of whom have been cleared of any wrongdoing--locked up and abused because no court was watching. In those cases, the government will now have to put up or shut up: it will have to show an impartial judge enough evidence to justify detention. This six-year-long nightmare serves as a lesson in how fragile our constitutional protections truly are in the hands of an overzealous executive."

CCR President Michael Ratner said the ruling would ensure that "the executive does not falsely claim credit for detaining and incapacitating terrorists, when in many documented cases they have just swept up innocent men and hidden them from scrutiny. It rightfully discourages Congress and the President from establishing deceptive, extra-legal proceedings in times of crisis and confirms our qualms about inventing extra-legal and inhumane processes to detain human beings--no matter who they are or where they come from."

Justice Anthony Kennedy, author of the Supreme Court's majority opinion, wrote, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Pointing out that some of the approximately 280 prisoners still at Guantánamo have been imprisoned for as long as six years, Kennedy added, "The costs of delay can no longer be borne by those who are held in custody."

The Supreme Court's right wing, of course, begged to differ. In a bitter dissenting view, Justice Antonin Scalia predicted "devastating" and "disastrous consequences" because of the decision. "It will almost certainly cause more Americans to be killed," he said. "The nation will live to regret what the court has done today." Chief Justice John Roberts, meanwhile, described the CSRTs as "generous" in their protection of detainees' rights.

THIS IS the third time that the Supreme Court has ruled that detainees held without charges at Guantánamo can go into civilian courts to ask that the government justify its action. The previous two times, the administration and Congress, instead of granting prisoners their rights, altered the law to try to close the courthouse doors on detainees.

The ruling in Boumediene, however, leaves some important questions unanswered. The Court did not, for example, spell out "the extent of the showing required of the government," as Justice Kennedy put it, at a habeas corpus hearing in order to justify a prisoner's continued detention. Nor did the Court address whether prisoners are entitled to hear the evidence against them.

The ruling isn't likely to close the prison camp at Guantánamo Bay any time soon, despite the hopes of activists. In fact, the decision doesn't require the release of a single prisoner at Guantánamo--it simply states that the remaining prisoners are entitled to an opportunity to challenge their detentions in court.

As the New York Times pointed out, the ruling gives "federal judges broad powers to review the government's reasons for holding a prisoner. But once a judge is satisfied that there is a legitimate basis, a case can end quickly with a ruling in the government's favor."

Likewise, the ruling will not stop the war crimes trials currently underway against 19 defendants, including Khalid Sheik Mohammed--who the government admits was subjected to waterboarding and other "enhanced interrogation techniques"--and four other alleged September 11 plotters.

Anyone hoping the Supreme Court majority would intervene to require justice for the Guantánamo detainees, many of whom have precious little evidence against them, will be disappointed under the current circumstances.

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