FacebookTwitterGoogle+RedditEmail

The Supreme Court’s Gitmo Decision

Those who cherish the United States’ historical adherence to the rule of law — myself included — were delighted to hear that the US Supreme Court ruled on Thursday, in the case of Boumediene v. Bush (PDF), that the prisoners at Guantánamo “have the constitutional right to habeas corpus,” enabling them to challenge the basis of their detention, under the terms of the 800-year old “Great Writ” of habeas corpus, which prohibits the suspension of prisoners’ rights to challenge the basis of their detention except in “cases of rebellion or invasion.”

That this decision was required at all was remarkable, as it was almost four years ago, on 29 June 2004, that the Supreme Court ruled, in the case of Rasul v. Bush, that Guantánamo — chosen as a base for the prison because it was presumed to be beyond the reach of the US courts — was “in every practical respect a United States territory,” and that the prisoners therefore had habeas corpus rights, enabling the prisoners to challenge the basis of their detention.

The difference between then and now is that, in Rasul v.Bush, the Supreme Court ruled only that the prisoners had statutory habeas rights, and that, following the ruling, the executive responded in two ways that completely undermined the Supreme Court’s verdict.

The first of these — as lawyers began applying to visit prisoners to establish habeas cases — was the establishment of Combatant Status Review Tribunals (CSRTs) at Guantánamo, which were set up, ostensibly, to review the prisoners’ designation as “enemy combatants,” who could be held without charge or trial. In reality, they were a lamentable replacement for a valid judicial challenge. Although the prisoners were allowed to present their own version of the events that led up to their capture, they were not allowed legal representation, and were subjected to secret evidence that they were unable to see or challenge.

Last June, Lt. Col. Stephen Abraham, a veteran of US intelligence, who worked on the CSRTs, delivered a damning verdict on their legitimacy, condemning them as the administrative equivalent of show trials, reliant upon generalized and often “generic” evidence, and designed to rubber-stamp the prisoners’ prior designation as “enemy combatants.” Filed as an affidavit in Al Odah v. United States, one of the cases consolidated with Boumediene, Lt. Col. Abraham’s testimony was regarded, by legal experts, as the trigger that spurred the Supreme Court, which had rejected an appeal on behalf of the prisoners in April 2007, to reverse its decision and to agree to hear the cases. The reversal was so rare that it had last taken place 60 years before.

The executive’s second response to Rasul was to remove the prisoners’ statutory rights, persuading the third strand of the American power base — the
politicians in Congress — to pass two hideously flawed pieces of legislation: the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006.

The Detainee Treatment Act (DTA), which originated as an anti-torture bill conceived by Senator John McCain, was hijacked by the executive, who managed to get an amendment passed that removed the prisoners’ habeas rights, although the legislation was so shoddy that it was not entirely clear whether the prisoners had been stripped of their rights entirely, or whether pending cases would still be considered. What was clear, however, was that the DTA limited any review of the prisoners’ cases to the DC Circuit Court (rather than the Supreme Court), preventing any independent fact-finding to challenge the substance of the administration’s allegations, and mandating the judges to rule only on whether or not the CSRTs had followed their own rules, and whether or not those rules were valid.

In the fall of 2006, following a second momentous decision in the Supreme Court, in Hamdan v. Rumsfeld, in which the justices ruled that the proposed trials by Military Commission for those held at Guantánamo (which also relied on the use of secret evidence) were illegal under domestic and international law, the executive persuaded Congress to pass the Military Commissions Act (MCA), which reinstated the Military Commissions and also removed any lingering doubts about the prisoners’ habeas rights, stating, explicitly, “No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” In a further attempt to stifle dissent, the MCA defined an “enemy combatant” as someone who has either engaged in or supported hostilities against the US, or “has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the secretary of defense.”

The wheels of justice revolve so slowly that it has taken over a year and a half since the passing of the MCA for the Supreme Court to stamp its authority on the conceits of both the executive and Congress, and cynics can argue that all of this could have been avoided if the Supreme Court had insisted on the prisoners’ Constitutional habeas rights in June 2004. Nevertheless, Thursday’s ruling — however belatedly — comprehensively demolishes the habeas-stripping provisions of both the DTA and the MCA.

In no uncertain terms, Justice Anthony Kennedy, delivering the Court’s majority opinion, ruled that the “procedures for review of the detainees’ status” in the DTA “are not an adequate and effective substitute for habeas corpus,” and that therefore the habeas-stripping component of the MCA “operates as an unconstitutional suspension of the writ.” These judgments, which should soundly embarrass the nations’ politicians, could hardly be more clear, and although it is uncertain how the administration will respond in its dying days, it seems unlikely that the executive will be able to prevent a slew of habeas cases, which have, effectively, been held in a kind of legal gridlock for years, from progressing to court.

The only other obvious recourse, which will also help the prisoners to escape from the intolerable legal limbo in which they have been held for up to six and a half years, is that the administration will suddenly develop a previously undreamt-of diplomatic dexterity, and will make arrangements for the release of a large number of the 273 remaining prisoners without having to endure the acute embarrassment of justifying, in a proper courtroom, the hearsay, the innuendo, the generic information masquerading as evidence, and the fruits of torture, coercion and bribery that it has used to imprison these men for so many years.

Since 9/11, sadly, justice in the US has moved so slowly that on occasion it has appeared to be dead, but Thursday’s verdict is a resounding triumph for the importance of the law as a check on unfettered executive power and the caprice of politicians. As Justice Kennedy stated in his opinion, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” He added, “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,’” a quote from an 1803 ruling, in which the Supreme Court explained its right to review acts of Congress, which, of course, reinforces the supremacy of the separation of powers that lies at the heart of the United States Constitution.

ANDY WORTHINGTON is a British historian, and the author of ‘The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison’ (published by Pluto Press). Visit his website at: www.andyworthington.co.uk He can be reached at: andy@andyworthington.co.uk

 

 

Your Ad Here
 

 

 

 

 

More articles by:

ANDY WORTHINGTON is a British journalist, the author of ‘The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison’ (published by Pluto Press), and the co-director (with Polly Nash) of the new Guantánamo documentary, ‘Outside the Law: Stories from Guantánamo.’ Visit his website at: www.andyworthington.co.uk He can be reached at: andy@andyworthington.co.uk        WORDS THAT STICK ?  

November 20, 2018
John Davis
Geographies of Violence in Southern California
Anthony Pahnke
Abolishing ICE Means Defunding it
Maximilian Werner
Why (Mostly) Men Trophy Hunt: a Biocultural Explanation
Masturah Alatas
Undercutting Female Circumcision
Jack Rasmus
Global Oil Price Deflation 2018 and Beyond
Geoff Dutton
Why High Technology’s Double-Edged Sword is So Hard to Swallow
Binoy Kampmark
Charges Under Seal: US Prosecutors Get Busy With Julian Assange
Rev. William Alberts
America Fiddles While California Burns
Forrest Hylton, Aaron Tauss and Juan Felipe Duque Agudelo
Remaking the Common Good: the Crisis of Public Higher Education in Colombia
Patrick Cockburn
What Can We Learn From a Headmaster Who Refused to Allow His Students to Celebrate Armistice Day?
Clark T. Scott
Our Most Stalwart Company
Tom H. Hastings
Look to the Right for Corruption
Edward Hunt
With Nearly 400,000 Dead in South Sudan, Will the US Finally Change Its Policy?
Thomas Knapp
Hypocrisy Alert: Republicans Agreed with Ocasio-Cortez Until About One Minute Ago
November 19, 2018
David Rosen
Amazon Deal: New York Taxpayers Fund World Biggest Sex-Toy Retailer
Sheldon Richman
Art of the Smear: the Israel Lobby Busted
Chad Hanson
Why Trump is Wrong About the California Wildfires
Dean Baker
Will Progressives Ever Think About How We Structure Markets, Instead of Accepting them as Given?
Robert Fisk
We Remember the Great War, While Palestinians Live It
Dave Lindorff
Pelosi’s Deceptive Plan: Blocking any Tax Rise Could Rule Out Medicare-for-All and Bolstering Social Security
Rick Baum
What Can We Expect From the Democrat “Alternative” Given Their Record in California?
Thomas Scott Tucker
Trump, World War I and the Lessons of Poetry
John W. Whitehead
Red Flag Gun Laws
Newton Finn
On Earth, as in Heaven: the Utopianism of Edward Bellamy
Robert Fantina
Shithole Countries: Made in the USA
René Voss
Have Your Say about Ranching in Our Point Reyes National Seashore
Weekend Edition
November 16, 2018
Friday - Sunday
Jonah Raskin
A California Jew in a Time of Anti-Semitism
Andrew Levine
Whither the Melting Pot?
Joshua Frank
Climate Change and Wildfires: The New Western Travesty
Nick Pemberton
The Revolution’s Here, Please Excuse Me While I Laugh
T.J. Coles
Israel Cannot Use Violent Self-Defense While Occupying Gaza
Rob Urie
Nuclear Weapons are a Nightmare Made in America
Paul Street
Barack von Obamenburg, Herr Donald, and Big Capitalist Hypocrisy: On How Fascism Happens
Jeffrey St. Clair
Roaming Charges: Fire is Sweeping Our Very Streets Today
Aidan O'Brien
Ireland’s New President, Other European Fools and the Abyss 
Pete Dolack
“Winners” in Amazon Sweepstakes Sure to be the Losers
Richard Eskow
Amazon, Go Home! Billions for Working People, But Not One Cent For Tribute
Ramzy Baroud
In Breach of Human Rights, Netanyahu Supports the Death Penalty against Palestinians
Brian Terrell
Ending the War in Yemen- Congressional Resolution is Not Enough!
John Laforge
Woolsey Fire Burns Toxic Santa Susana Reactor Site
Ralph Nader
The War Over Words: Republicans Easily Defeat the Democrats
M. G. Piety
Reading Plato in the Time of the Oligarchs
Rafael Correa
Ecuador’s Soft Coup and Political Persecution
Brian Cloughley
Aid Projects Can Work, But Not “Head-Smacking Stupid Ones”
David Swanson
A Tale of Two Marines
FacebookTwitterGoogle+RedditEmail