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
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
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, 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.