UPDATED:SCOTUS: Gitmo Prisoners Have Rights Under The Constitution To Challenge Their Detention In U.S. Civilian Courts.
Excerpts from this article:
Justice Anthony Kennedy, writing for the court, said, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
Kennedy said federal judges could ultimately order some detainees to be released, but that such orders would depend on security concerns and other circumstances……………….
……………..In dissent, Chief Justice John Roberts criticized his colleagues for striking down what he called “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”
Justices Samuel Alito, Antonin Scalia and Clarence Thomas also dissented.
Scalia said the nation is “at war with radical Islamists” and that the court’s decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.”
Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens joined Kennedy to form the majority.
Souter wrote a separate opinion in which he emphasized the length of the detentions.
“A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years,” Souter said. “Hence the hollow ring when the dissenters suggest that the court is somehow precipitating the judiciary into reviewing claims that the military … could handle within some reasonable period of time.”
The court has ruled twice previously that people held at Guantanamo without charges can go into civilian courts to ask that the government justify their continued detention. Each time, the administration and Congress, then controlled by Republicans, changed the law to try to close the courthouse doors to the detainees.
The court specifically struck down a provision of the Military Commissions Act of 2006 that denies Guantanamo detainees the right to file petition of habeas corpus.
Habeas corpus is a centuries-old legal principle, enshrined in the Constitution, that allows courts to determine whether a prisoner is being held illegally.
The head of the New York-based Center for Constitutional Rights, which represents dozens of prisoners at Guantanamo, welcomed the ruling.
“The Supreme Court has finally brought an end to one of our nation’s most egregious injustices,” said CCR Executive Director Vincent Warren. “By granting the writ of habeas corpus, the Supreme Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation’s founding.”
Update via the Law Blog: Gitmo Case: Reactions from Around the Web
Earlier today, the High Court ruled that foreign nationals held at Gitmo have a right to pursue habeas challenges to their detention. In its 5-4 ruling in Boumediene v. Bush, the Court ruled that if Congress wishes to suspend habeas, it must do so only as the Constitution allows ” when the country faces rebellion or invasion. Now the question of whether detainees are entitled to be released is left to district court judges in Washington, who are already deliberating how to handle the cases. (Gavel bang: Scotusblog)
In the meantime, we’ve rounded up several different takes on the ruling and its consequences.
What’s the big deal? Over at the Volokh Conspiracy, GWU prof Orin Kerr says the ruling is pretty much exactly what he predicted would happen in his Senate testimony over a year ago. “Nothing I’ve seen in the Court’s opinion so far is at all surprising,” writes Kerr, “and it’s a big defeat for the Bush Administration. This doesn’t mean I have some amazing powers of observation; rather, I think this was a defeat that you could see coming from miles (or in this case, years) away.”Some things the opinion does NOT do: At the Balkinization blog, Georgetown’s Marty Lederman says that while the decision is momentous because the petitioners will be able to have their habeas petitions considered in district court, the Supreme Court did not reach at least four important questions: (1) Whether the Constitution applies to detainees held outside Gitmo; (2) What the substantive standard for detention is; (3) Whether GTMO should be closed (”[A]lthough,” writes Lederman, “it basically undermines the Administration’s principal reason for using GTMO in the first place, which was to keep the courts from reviewing the legality of the Executive’s conduct”); and, (4) Whether the administration should do away with the military commission trials.
“Good Day in Gitmo, Bad Day in Iraq”: That’s the title of a post over at Slate’s Convictions blog. Munaf v. Geren, another case decided today that involved U.S. citizens held by Americans in Iraq “is hardly pro-detainee,” writes Slate. “In a unanimous decision, the court ruled that while the U.S. federal courts have jurisdiction to hear the habeas petitions of Munaf and Omar (the U.S. citizen detainees), they would lose on the merits of their habeas claims”and there’s therefore no justification for blocking their transfer to the Iraqi authorities for criminal prosecution.”
Judge Posner is vindicated: In 2002, when the government first took the position that, because the detainees were captured overseas and held at GITMO they were beyond the protection of U.S. courts, Judge Richard Posner told the WSJ it was “absurd” to argue that prisoners’ rights “depend on the fact that they are stuck in Guantanamo rather than in the U.S.” Voila!
June 12, 2008 - 10:11 AM on June 12th, 2008
Finally!! If they are guilty, by all means punish them. But let them be tried and get it done with.
NY-David
June 12, 2008 - 10:54 AM on June 12th, 2008
Yes, YES! We should spend millions of dollars on them! Let’s provide them with Dream Teams of Leftist lawyers who will jump at the chance to help our enemies! Call in Ramsey Clark!
Yeah, they should have their day in Court. A military court at Gitmo.
June 12, 2008 - 11:06 AM on June 12th, 2008
Granting the President the power to unilaterally overturn a constitutional guarantee is about as blatently un-American as anything I can imagine, short of outright treason. Thank God there’s still some sanity left in the Supreme Court.
June 12, 2008 - 11:14 AM on June 12th, 2008
I’d be happy with a military court. When you don’t deal with a situation, you leave the door open for someone else to deal with it for you and that is precisely what happened here.
NY-David
June 12, 2008 - 11:17 AM on June 12th, 2008
This is the THIRD TIME that the Bush Admin and its Conservative supporters (ahem!) have been shot down by the SCOTUS on the issue of basic legal rights for human beings held in detention…
I see a pattern has formed here of perpetual legal “wrongness” from my friends on the Right, regarding Gitmo.
June 12, 2008 - 11:21 AM on June 12th, 2008
I could care less if it’s a military court, or a civilian one, just that they have the MEANS to challenge their imprisonment, and that they are not imprisoned without being charged with SOMETHING.
I’m all for catching bad guys, let’s just make SURE they’re bad guys, and not just some sheep herder getting three hots and a cot on our dime, because we’re too busy to find the TRUTH.
That FOUR of the Judges dissented is frightening, we are ONE appointee away from doing away with the most basic tenets of this country, and he Righties couldn’t care less how much damage they’ve done to her.
June 12, 2008 - 11:30 AM on June 12th, 2008
SFL do you realize what is really going on here? The last time the SC ruled this way Congress passed a law specifically written to prevent this.
And the SC majority strikes the new law down!
This is judicial tyranny! The SC has de facto assumed control of America
June 12, 2008 - 11:32 AM on June 12th, 2008
#3 WS you think non-citizens, terrorists not even covered by the Geneva Convention have U.S. Constitutional rights?
June 12, 2008 - 01:19 PM on June 12th, 2008
From HA:
The opinion can be read here. From a cursory reading, the Court says that Congress cannot act to suspend habeas corpus except through the Suspension Clause, which requires an explicit act noting invasion or rebellion. Would infiltration suffice, or does Congress even need that much reason to invoke the Suspension Clause?
Scalia’s dissent is especially scathing:
Update III: I’ve read through both dissents, and I have to say that I’m struck by the tone of Scalia and Roberts. Not only do they dissent, they practically accuse the majority of deliberately misreading both law and precedent, especially regarding Eisentrager. They point out that the dissent in that case explicitly noted that the decision gave aliens in detention by American forces outside of our own sovereign territory no habeas rights at all, and yet the majority used it to apply those rights in this case. Roberts scornfully argues that the Court “cashiered”the military tribunal system before it had a chance to show that it addressed detainee rights properly.
I’d say that the end of this session couldn’t come quickly enough for these justices.
June 12, 2008 - 02:39 PM on June 12th, 2008
Fred #6: “I’m all for catching bad guys, let’s just make SURE they’re bad guys, and not just some sheep herder getting three hots and a cot on our dime, because we’re too busy to find the TRUTH.”
They already released the guys that were deemed to be not dangerous or who hadn’t done something bad. I believe there were some detainees who didn’t belong there because we paid a bonus to the Northern alliance for prisoners, and I’d bet money they did snag a few sheepherders in the beginning especially.
That being said, it turned out after they released those detainees there have been at least two cases where they did very bad things afterwards.
The ones there now are the bad dudes. In any other war they would have been executed by military firing squad a long time ago. This SC is out of control.
June 12, 2008 - 03:07 PM on June 12th, 2008
The recidivism rate is high for released GITMO prisoners
June 12, 2008 - 06:59 PM on June 12th, 2008
As I’m looking up the work “recidivism”, I’ll remark that they must not have a good review process in place if they got rid of two bad ones. It may be well to look this thing though. More over, these aren’t US citizens, so saying they are entitled to the same rights doesn’t wash with me.
But let’s get some process in place to get them tried and done with.
NY-David
June 12, 2008 - 08:03 PM on June 12th, 2008
The biggest danger here is that if they are tried in civilian courts, their attorneys can demand access to all sorts of information that will reveal classified sources and means of intel gathering. Agents working for us abroad will be compromised and will be in danger. If the U.S. does not supply the evidence, the terrorists walk.
But none of this seems to matter to the crowd that agrees with the out-of-control rogue SC majority. The sobs should be thrown off the bench. Either that or Bush should give them the Andrew Jackson treatment and order Military Trials anyway. Ignore the SC. Screw them. He has nothing to lose and it is the right thing to do.
June 12, 2008 - 08:42 PM on June 12th, 2008
I agree, but I think there has been provision for infosec. My concern is that they could possibly not only walk, but turn around and bring suit.
NY-David
June 12, 2008 - 09:14 PM on June 12th, 2008
I think you are right, they probably will.
June 13, 2008 - 06:32 AM on June 13th, 2008
Pam?? Another research topic for your thesis… How does Gitmo compare to Nurenberg?
NY-David
June 13, 2008 - 09:35 AM on June 13th, 2008
Question: Do the troops have to mirandize anyone they capture?
see ya
cathy
June 13, 2008 - 10:52 AM on June 13th, 2008
None of this Gitmo crap should be discussed! So stop airing dirty laundry to the world. FORGET THE GETMO, they would NOT be there if they were NOT guilty. There is an easy way around this whole issue, just be quiet and quick about it. Get’er done at the Gitmo. We have lot more than that on our plate right now!
How to correct ALL problems!
BE PRO-ACTIVE!
BEGIN WITH THE END IN MIND!
HAVE A WIN/WIN!
KISS!
I have a very good black lady friend and she said she was so sick of this election. She had lost some good friends over the Democrats and Obama playing the race card when there were no problems until then. She just wanted to get to work and be left alone. Me too sister! This beautiful lady is fun, nice and she feels used by all of this rhetoric. The average working class, black, white, whatever, just wants peace and the government to stop the insanity, fighting, and just get back to work as well. The congress and senate are elected and are paid way more than they are worth. If there should be any people fired from their job – begin with them. BEGIN WITH THE END IN MIND! HELLO! Enough is Enough and the American people (that cling to their guns and their God) are so FU$#@!^#
FED UP WITH THE FEDS! Just keep pushing dummies, and see where it gets YO!!!
June 13, 2008 - 12:18 PM on June 13th, 2008
I meant the government to stop airing dirty laundry – not Right Voices, it may have sounded that way by how I worded it – after re-reading it, sorry guys! This Gitmp has been carried to extreme, as many issues are now and should be kept secret from our enemies. It is none of their business.
June 13, 2008 - 06:54 PM on June 13th, 2008
MAN I CAN JUST IMAGINE IF OBAMA IS PRIVY TO SECRET GOV. INFO. HIS BIG MOUTH BASS WIFE WILL LET THE CAT OUT OF THE BAG AT ONE OF HER SPEECHESS AND HERE GOES NOTHING. BLABBER LIPS MICHELLE WITH NO TACK OR CULTURE A KIN TO ANYONE I KNOW. MICHELLE CAN’T CONTROL HER TEMPER OR HER TONGUE WHICH WILL BE OBAMA’S DEMISE. SHE IS A THORN IN HIS SIDE AND AMERICA’S AS WELL. MICHELLE SURE ISN’T ANYTHING TO BE PROUD OF! EMBARRASING BUFFOON AND NEEDS A COURSE ON MANNERS.
June 13, 2008 - 09:56 PM on June 13th, 2008
“How does Gitmo compare to Nurenberg?”
——————-
The Nuremberg Trials had two aspects; an International Military Court made up of the Allies that was used to prosecute the big name Nazi officals and industrialists and an American Military Tribunal that did 12 cases like the Doctors Trial and the High Command (generals) Trial.
…I assume that at Gitmo there is no international military court. Just the US.
June 13, 2008 - 11:58 PM on June 13th, 2008
#17 cathymv you might be joking but actually there is a grain of truth there. If this kind of thing is allowed to continue our soldiers will be writing reports and gathering evidence to prepare cases against prisoners. They’ll be more like Cops than soldiers. It is absurd. It is a huge distraction.
I have already heard speculation that the effect of this is that our soldiers just won’t take prisoners. Either they’ll turn them over to the Iraqis or other allied forces for disposition, or they’ll just kill them. I couldn’t blame them for doing either. This is absurd and a distraction and potential liability for them.
June 14, 2008 - 07:36 AM on June 14th, 2008
I have one sure trial. Parole Gitmo detainees to David and SFL’s care. If they live, David and SFL, then there was no truth that the detainees were enemies of the US. If they kill SFL and David, then SFL and David proved My point in dying.
June 14, 2008 - 01:34 PM on June 14th, 2008
I think each of the SC Justices that voted for this should have a detainee assigned to live with them until their cases are resolved. Since these klowns seem to love them detainees so much, surely they would be for this. After all, these detainees are just ordinary, poor people caught up in the web of conflict. Now they’re victims of U.S. aggression and the Bush Administration/Halliburton/Big Oil!
Extending Constitutional rights to them is the first step; think how the World would again love and respect the U.S. if these Justices stepped forward to take in these poor victims!
If I was benevolent Dictator, I would order this!
June 14, 2008 - 03:06 PM on June 14th, 2008
23 – How disgusting. All I’m suggesting is getting a trial going so they can be judged and then dealt with. Apparently our present system isn’t adequest given the fact that at least two returned to do harm. We would ask no less for our troops if they were caught.
NY-David
June 14, 2008 - 05:48 PM on June 14th, 2008
ahh but David when our troops are caught they behead them after they have tortured them of course. They were given fair treatment as military combatants under the Geneva code of laws. That was good enough for me.
June 14, 2008 - 07:44 PM on June 14th, 2008
Agreed, but you can’t hold yourself out to be the bellweather for the world if you don’t practice what you preach. My understanding is that after the initial evaluation, these guys were shut away. The reason they are called “combatants” is because as soon as they are called POW’s, Geneva Convention kicks in and they will be tried. Since Bush didn’t want this don’t, their status was maintained as “Combants”. Like I said earlier, deal with the problem, or someone will deal with it for you. In this case a Liberal, if not Lenient court. If they turn out to be guilty, put them away. Is there something out of this process that I’m missing??
NY-David
June 14, 2008 - 08:49 PM on June 14th, 2008
This is getting in deep and a bit over my head, too. One thing for sure – and certain. The United States needs to maintain it’s position of strength and not back down from anything. Terrorist acts is all the weak can use against the strong. So America needs to maintain a strong military. Obama wants to weaken our military. Wonder Why? Listen, the answer is plain as the nose on your face. THINK – it’s still legal in the United States.
Hate to keep bringing this up, however, you remember when Obama said on the stump: he had visited 57 states, well there are 57 Islamic Muslim States. Not just a gaffe on this one. I say no more free passes for these untrustworthy Obamas. We need to let the mafia media, & lousy liberals understand that loud and clear.
June 15, 2008 - 10:50 AM on June 15th, 2008
“So America needs to maintain a strong military. Obama wants to weaken our military.”
Actually, President – I mean – Sen. Obama says he will increase the size of American ground forces, adding 65,000 soldiers to the Army and 27,000 Marines. He has also said that he’d give the Natty Guard a seat at the table by making the Chief of the National Guard a member of the Joint Chiefs of Staff.
http://www.barackobama.com/issues/foreignpolicy/#21st-century-military
And on a different note, Carolyne, there actually were more than 50 contests in the Dem primary. Need to include Guam, Virgin Islands, Puerto Rico, Washington DC, Dems Abroad vote, American Samoa and the Texas Caucus (2 contests, 1 state)…
June 15, 2008 - 11:09 AM on June 15th, 2008
Actually SFL he is a Senator in name only. He has done nothing in his term of office except start a presidential exploratory committee.
He is UNqualified to be CIC. Adding ground forces everywhere except where needed is a mute point.
June 15, 2008 - 11:10 AM on June 15th, 2008
Carolyn…you keep raggin’ girlfriend
I’ve been away and trying to catch up myself. Hope your weekend is going well.
June 15, 2008 - 11:31 AM on June 15th, 2008
Obama doesn’t have the slightest clue about the Military; military life, military training, esprit. He doesn’t even understand enough to make a useful assessment.
June 15, 2008 - 04:28 PM on June 15th, 2008
#27 David, you are almost right. They are called “combatants” because under the Geneva Conventions they do not qualify for the title of “prisoner of war”. To qualify as a POW, they have to meet the guidelines set forth in the Geneva Conventions for LAWFUL combatants. They don’t. Their actual title should be “Unlawful Combatants” but that, like “Illegal Aliens”, is sanitized by the media to conceal their true nature. Under the Geneva Conventions, any combatant that doesn’t wear a uniform or indentifying insignia, doesn’t have an identifiable chain of command, carry ID, carry their weapons openly, and/or intentionally attacks civilian targets is violating the rules of the Geneva Conventions and are considered “Unlawful Combatants” and are to be treated the same as saboteurs. That means that under international law, they are to be afforded a military tribunal convened by the theater commander or his designated representatives and if their status as an unlawful combatant is confirmed, they may be executed at the convening authorities discretion.
With the recent Supreme Court decision, I’d give the liberals what they want, I’d return the combatants to the theater of operations, and turn them over to the Afghani and Iraqi governments. They’ll sing like canaries to get back to Gitmo rather than be turned over to the Afghani or Iraqi Government for adjudication and punishment. I would guess that most of them would be hanging from a palace wall within the next 6 weeks of being turned over. Great line from the TV series “Jericho” “Torture doesn’t get the truth, FEAR of torture does.”
June 15, 2008 - 06:38 PM on June 15th, 2008
25, David, you and SFL prove you don’t know what the Hell you are talking about. FAO schools you in #33.
The only reason I said what I said in 23 is that libs do not understand and accept the real world until it happens up close and personal.
June 16, 2008 - 08:12 AM on June 16th, 2008
PCD – Whatever. FAO makes good points and I learn something occasionaly. You just make useless rhetoric.
33- Good point. Their hope currently would be to go to Afghanistan. Taliban took over a prison recently and let out its occcupants. Thanks again, GWB. Never miss an opportunity to miss an opportunity. This time by taking your eye off the ball in Afghanistan, we’ve lost in more ways then one.
NYD
June 16, 2008 - 12:51 PM on June 16th, 2008
Thanks Bon Bon – just heard a Brigadier General speak at a meeting – got the correct info on the Military. I would believe him over the SFL any day which uses excuse after excuse, skits issues mainly fooling himself, which is easy to do. Obama is even more CLUELESS like Robert says than the SFL, if that is even possible. They may be running neck and neck, not to ever reach the finish line, only in a Vicious Circle. Obama only knows the Muslim way of military force, murder the women and children first then the men can do as they please. OOPS, what happened we aborted all girl baby’s, NOW WHAT THE . . . . DO WE DO??
June 19, 2008 - 01:10 AM on June 19th, 2008
And what exactly does the Taliban taking over a prison in Afghanistan have to do with the US? We are not in charge of the prisons in Afghanistan. That is the role of the Afghani government. To blame Bush because the Afghani government isn’t capable of securing its own prisons is ludicrous. Now the Afghani government has to deal with the Taliban trying to overthrow the government… AGAIN. David, if you look at the history of ANY war in which a corrupt regime was overthrown and an insurgency/civil war ensued, it was almost never over in under 10 years. There are plenty of examples of this in Central America. Nicaragua and El Salvador come to mind. Our own Revolution ran from 1775 until 1783. And that wasn’t involving a bunch of people armed with Ak-47s running rampant trying to regain their power. If it takes 8 years to win a war against a bunch of people who don’t necessarily want to fight to retain power (Hessian mercenaries and British conscripts) and armed with muskets, how much longer would it take if they did want to regain power and were armed with AKs and RPGs?
June 19, 2008 - 08:46 AM on June 19th, 2008
37 – You are correct in your assertion that it takes many years for a country to stablize. Elements of our Revolutionary War were still out at sea at the turn of the century (Privateer ships). My point is that if the prison wasn’t secured, what eles isn’t? Perhaps a surge in forces should be called for here as well. Overall Iraq has gotten the lion’s share of the attention and the 9/11 hijackers didn’t even come from there. As we are responsible for maintaining security in Iraq until they get on their feet (and its not going to happen overnight, as we’ve now seen), we have the same responsibilty in Afghanistan. I respectfully disagree with you that the Taliban was trying to overthrow the government. In many facets, they were the government.
And, yes, you just heard a Liberal suggest a surge.
NY-David
June 19, 2008 - 10:17 AM on June 19th, 2008
If we had a surge here I’d suggest we invade Berzerkely and San FranFreako to restore Democracy. Then remove some Supreme Court Justices by force to restore overall Democracy.
June 19, 2008 - 10:58 AM on June 19th, 2008
My mis-com. I meant a surge in Afghanistan, although I entirely disagree on your post
NYD