Organize the South

Yesterday I posted a letter from Rep. Phil Gingrey (R-11th District GA) on his outrage over the Supreme Court ruling in Boumediene v. Bush. Gingrey is a supporter of habeas corpus except when it applies to everyone. Below are two articles I pulled off of Portside. Good comments.

Supreme Court Deals Death Blow to Gitmo
By Jonathan Hafetz

June 12, 2008

Today's ruling by the Supreme Court in Boumediene v. Bush delivered a dramatic blow to the President's lawless detention policies and overturned an effort by the previous Congress to eliminate the centuries-old right of habeas corpus. The ruling means that prisoners at the US military base at Guantanamo Bay, who have been held for more than six years without charge, will finally have the opportunity to challenge the accusations against them in a court of law. More broadly, the ruling rejects the premise on which Guantánamo is based: that the President can create a lawless enclave simply by incarcerating people outside the mainland United States.

Boumediene marks the culmination of the quest for due process that began in 2002, when the first habeas corpus petitions were filed by Guantanamo detainees in federal court. In 2004, the Supreme Court ruled in Rasul v. Bush that the detainees had a right to habeas corpus under a statute that dated to the nation's founding. The Administration, however, then sought to block any of the cases from going forward, arguing that the detainees had no rights to enforce beyond filing a piece of paper called "habeas corpus" and that any rights they did have were satisfied by the summary military proceedings it had hastily put in place after the Supreme Court's decision.

Congress, in turn, twice tried to eliminate habeas rights for detainees. The Supreme Court rejected the first attempt in 2006, ruling in Hamdan v. Rumsfeld that the legislation did not apply to pending cases. So Congress tried again with the Military Commissions Act of 2006 (MCA), which made explicit that the elimination of habeas rights applied to all Guantanamo cases, past, present and future. The issue before the Supreme Court in Boumediene was whether the MCA violated the constitutional guarantee of habeas corpus, known as the "Suspension Clause."

The first question the Court addressed in Boumediene was whether the Guantanamo detainees had a right to habeas corpus. The Administration had argued that because the prisoners were foreign nationals held outside the sovereign territory of the United States, they had no rights under the Constitution. As a result, the President and Congress were free to deny them any access to the courts at all.

The Supreme Court rejected this argument in no uncertain terms. As Justice Anthony M. Kennedy explained in his 5-4 opinion for the Court, formal constructs like "sovereignty" do not and cannot dictate the presence or absence of constitutional rights because they are "subject to manipulation by those whose power it is designed to restrain."

Boumediene thus sounded a death-knell to the idea of Guantanamo itself: that the President can imprison people indefinitely without court review simply by bringing them to a US enclave on an island in the Caribbean. Instead, Kennedy's opinion adopts a more flexible and pragmatic approach under which the Constitution's applicability to those beyond America's shores depends on a practical assessment of the circumstances. And under that approach, the application of fundamental constitutional rights at Guantanamo, where individuals have been detained for more than six years in territory under total US control, is a no-brainer.

The ruling that the Guantanamo detainees are protected by the Constitution, however, did not end the case. The government had also argued that the process Congress created in 2005 in place of habeas corpus satisfied all the rights Guantanamo detainees had. This process had two parts: first, the summary military hearing, known as a Combatant Status Review Tribunal (CSRT); and second, limited review of the CSRT's decision by the court of appeals in Washington, DC, pursuant to the Detainee Treatment Act of 2005.

The Supreme Court made clear that Congress can create a constitutionally adequate substitute for habeas corpus without running afoul of the Suspension Clause if that substitute provides what habeas corpus provides. But the Court also ruled that Congress had unmistakably failed to provide an adequate substitute for habeas corpus for Guantanamo detainees.

The reason, the Court explained, was that the habeas itself requires an opportunity for a prisoner to see the allegations against him, to respond to those allegations with the assistance of counsel, and to a determination by an independent judge. The CSRT, by contrast, relied primarily on secret accusations denied prisoners the assistance of counsel and an opportunity to submit evidence showing their innocence, and lacked neutrality. Any court review limited to such a sham hearing, the Supreme Court said, was tantamount to no review at all.

In another decision issued today, the Court reaffirmed the right of American citizens to habeas corpus no matter where they are held. The Court ruled in Munaf v. Geren that two American citizens detained in Iraq have a right to habeas corpus. In so doing, the Court rejected the government's argument that the President could avoid the reach of habeas corpus by claiming that the United States was holding the prisoners under "international authority"--in that case, a UN Security Council Resolution. While the Court agreed with the government that the prisoners could not obtain review of their transfer to Iraqi custody, it made clear that American citizens have the right to habeas corpus as long as they are held by their government, no matter where they are detained or what label is attached to their detention.

Today's ruling in Boumediene does not require the release of any prisoner at Guantanamo. Instead, it merely mandates that the 275 prisoners who are still there must receive what they should have received long ago: an opportunity to challenge their imprisonment in court. In a country committed to justice and the rule of law nothing less is acceptable. While it has taken almost seven years to vindicate this most modest principle, late is better than never.

---

Jonathan Hafetz directs litigation for the Liberty and National Security Project of the Brennan Center for Justice. Mr. Hafetz is counsel in several leading post-9/11 detention cases.

===

Justice 5, Brutality 4
New York Times Editorial
June 13, 2008


For years, with the help of compliant Republicans and frightened Democrats in Congress, President Bush has denied the protections of justice, democracy and plain human decency to the hundreds of men that he decided to label "unlawful enemy combatants" and throw into never- ending detention.

Twice the Supreme Court swatted back his imperial overreaching, and twice Congress helped Mr. Bush try to open a gaping loophole in the Constitution. On Thursday, the court turned back the most recent effort to subvert justice with a stirring defense of habeas corpus, the right of anyone being held by the government to challenge his confinement before a judge.

The court ruled that the detainees being held in Guantanamo Bay, Cuba, have that cherished right, and that the process for them to challenge their confinement is inadequate. It was a very good day for people who value freedom and abhor Mr. Bush's attempts to turn Guantanamo Bay into a constitutional-rights-free zone.

The right of habeas corpus is so central to the American legal system that it has its own clause in the Constitution: it cannot be suspended except "when in cases of rebellion or invasion the public safety may require it."

Despite this, the Bush administration repeatedly tried to strip away habeas rights. First, it herded prisoners who were seized in Afghanistan, and in other foreign countries, into the United States Navy base at Guantanamo Bay and claimed that since the base is on foreign territory, the detainees' habeas cases could not be heard in the federal courts. In 2004, the court rejected that argument, ruling that Guantanamo, which is under American control, is effectively part of the United States.

In 2006, the court handed the administration another defeat, ruling that it had relied improperly on the Detainee Treatment Act of 2005 to hold the detainees on Guantanamo without giving them habeas rights. Since then, Congress passed another law, the Military Commissions Act of 2006 that tried - and failed horribly - to fix the problems with the Detainee Treatment Act.

Now, by a 5-to-4 vote, the court has affirmed the detainees' habeas rights. The majority, in an opinion by Justice Anthony Kennedy, ruled that the Military Commissions Act violates the Suspension Clause, by eliminating habeas corpus although the requirements of the Constitution - invasion or rebellion - do not exist.

The court ruled that the military tribunals that are hearing the detainees' cases - the administration's weak alternative to habeas proceedings in a federal court - are not an adequate substitute. The hearings cut back on basic due process protections, like the right to counsel and the right to present evidence of innocence.

It was disturbing that four justices dissented from this eminently reasonable decision. The lead dissent, by Chief Justice John Roberts, dismisses habeas as "most fundamentally a procedural right." Chief Justice Roberts thinks the detainees receive such "generous" protections at their hearings that the majority should not have worried about whether they had habeas rights.

There is an enormous gulf between the substance and tone of the majority opinion, with its rich appreciation of the liberties that the founders wrote into the Constitution, and the what-is-all-the-fuss-about dissent. It is sobering to think that habeas hangs by a single vote in the Supreme Court of the United States - a reminder that the composition of the court could depend on the outcome of this year's presidential election. The ruling is a major victory for civil liberties - but a timely reminder of how fragile they are.