In what the New York Times is heralding as a “historic” ruling on the balance between liberty and security, the U.S. Supreme Court decides 5 to 4 that Guantanamo detainees have the habeas corpus right to challenge their detention in U.S. courts.
The President, the Congress, and a federal appeals court erred in allowing the Military Commissions Act of 2006 to be used in a way that denied prisoners detained at Guantanamo Bay, Cuba the constitutional right of habeas corpus.
“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” wrote Justice Anthony Kennedy for the court majority. “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.”
Justice Kennedy, as has often been the case since the retirement of Justice Sandra Day O’Connor, was the swing vote in a court that, once again, divided along a sharp ideological boundary, with all four dissenters being appointed either by President George W. Bush, or his father. And Kennedy authored the 70-page majority decision in Boumediene et al. v Bush, and Khaled A.F. Al Odah, et al. v. United States. The case was brought on behalf of 37 of the 300 detainees at Guantanamo Bay Cuba. All have been designed enemy combatants and all have proclaimed their innocence as they’ve sought to have their cases heard in federal courts.
In 2004, the Supreme Court, with rulings joined by Justice O’Connor in the Hamdi and Rasul decisions, rejected the Bush Administration’s war powers argument against extending habeas corpus rights to the Guantanamo detainees. The President and a Republican dominated Congress responded with the 2005 Detainee Treatment Act and the 2006 Military Commissions Act which, today, the Supreme Court struck down, in part, because a section of the law “operates as an unconstitutional suspension of the writ.”
Justice Kennedy’s decision is a patiently meandering treatise that is rooted in the legal foundations of habeas corpus in Blackstone’s England and works up through the Rasul decision’s handling of arguments about the reach of U.S. law to Guantanamo. It concludes by picking apart the flaws and inconsistencies in the 2005 Detainee Treatment Act and the 2006 Military Commissions Act.
Of the Detainee Treatment Act, Justice Kennedy wrote, “we see no way to construe the statute to allow what is also constitutionally required in this context: an opportunity for the detainee to present relevant exculpatory evidence that was not made part of the record in earlier proceedings.”
In a withering dissent, Justice Antonin Scalia wrote that the country was at war with “radical Islamists” and that the majority decision “will almost certainly cause more Americans to be killed.”
Posted June 12
