JUNE 12, 2008



“Foreign suspects held in Guantanamo Bay have the right to challenge their detention in US civilian courts, the US Supreme Court has ruled.

“In a major legal setback for the Bush administration, the court overturned by five to four a ruling upholding a 2006 law which removed such rights.

‘It is not clear if the ruling will lead to prompt hearings for the detainees. Some 270 men are held at the US naval base, on suspicion of terrorism or links to al Qaeda and the Taleban.”

Justice Scalia:

[T]oday’s opinion … will make the war harder on us. It will almost certainly cause more Americans to be killed.”


Prior to today, the received wisdom was that those non-U .S. citizens who do not reside in the U. S. and do not have permanent resident status run afoul of US forces outside US territory at their peril: They simply do not have access to the American judicial system to resolve their issues with our government.

In a five to four decision – Justice Kennedy voting with the majority – the U.S. Supreme Court has changed the rules.

The linchpin of the decision was to undo the denial of writ of habeas corpus to foreign terror combatants at the U. S. Guantanamo Bay detention facility in Cuba.

No one seriously disputes that Guantanamo is outside the United States.

Habeas Corpus is an extraordinary judicial order or writ that commands the executive to bring the body of a prisoner before the court for the purpose of reviewing the legality of his or her imprisonment.


Here is all that the actual text of the constitution says on the subject:


“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.


‘Section 9.

‘The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”


On the face of it (and based on the court’s earlier precedents), so called enemy combatants, non-citizens, persona not having the benefit of permanent resident status, who are being held during time of war by US military forces are not entitled to the benefit of a writ of habeas corpus.

Does the Bill of rights alter their status? Again, not on the face of it:



“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”


“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”


“Section 1.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”


Justice Anthony Kennedy, a Regan appointee, has become the high court’s “swing vote” – the Supreme Court is otherwise evenly divided between four left of center justices (Ginsburg, Souter, Stevens and Breyer) and five right of center justices (Alito, Scalia, Thomas and Roberts).

In the majority opinion, Kennedy disputed that a period of “public danger” should be used to suspend access to the writ, given the protracted nature of the terrorist threat.

Here is the core of his majority opinion:


“Petitioners identify what they see as myriad deficiencies in the CSRT’s [referring to the authorized military hearing procedures afforded the Guantanamo prisoners] the most relevant being the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. At the CSRT stage the detainee has limited means to find or present evidence to challenge the Government’s case, does not have the assistance of counsel, and may not be aware of the most critical allegations that the Government relied upon to order his detention. His opportunity to confront witnesses is likely to be more theoretical than real, given that there are no limits on the admission of hearsay. The Court therefore agrees with petitioners that there is considerable risk of error in the tribunal’s findings of fact. And given that the consequence of error may be detention for the duration of hostilities that may last a generation or more, the risk is too significant to ignore. Accordingly, for the habeas writ, or its substitute, to function as an effective and meaningful remedy in this context, the court conducting the collateral proceeding must have some ability to correct any errors, to assess the sufficiency of the Government’s evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.”


Critics of the decision – including trenchant dissents from Justices Roberts and Scalia – point out that the majority have authorized an unprecedented judicial intervention in the treatment of foreign terror detainees without indicating just how much American style “due process” will result.

Even majority seemed to recognize the scope of the possible mischief that may follow:


“As to the third factor, we recognize, as the Court did in Eisentrager [The court’s earlier precedent denying the extra-territorial use of habeas], that there are costs to holding the Suspension Clause applicable in a case of military detention abroad. Habeas corpus proceedings may require expenditure of funds by the Government and may divert the attention of military personnel from other pressing tasks. While we are sensitive to these concerns, we do not find them dispositive.”

[Kennedy in the majority opinion.]

…and the majority also recognized the unprecedented nature of its current holding:

“It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.”


Justice Roberts’ dissent put it plainly:

“Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date.”

…and he added–

“How the detainees’ claims will be decided now that the DTA (the congressionally authorized replacement of the military tribunals) is gone is anybody’s guess. But the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners’ detention with the undoubted need to protect the American people from the terrorist threat–precisely the challenge Congress undertook in drafting the DTA. All that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.”


It is difficult to miss the irony here. The Bush Administration is the victim of its own success in shutting down the terrorist threats to Americans living in the Continental U.S.

Many in the judicial branch, think – I suspect mistakenly – that the threat has abated; they now feel emboldened to reassert their “traditional” control over the conduct of affairs of state. From their point of view, the denial to non-citizen “suspects” of the generous procedural protections due “regular Americans” is a temporary aberration, one to be repaired at the first opportunity.

This Supreme Court decision represents a risky – also unnecessary and premature – assertion of judicial power. The whole situation could change in a heartbeat if and when our terrorist enemies get lucky again. Then the backlash against the “progressives” in judicial branch will be fierce and long lasting.

An earlier Supreme Court tradition would have used more restraint. Those justices understood the value of prudence, caution and forbearance, especially when invading the province of the other two branches of government.

The authority of the High Court can be weakened via overuse; I would have saved it for something more directly affecting the rights of our own citizens and residents.


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