SCOTUS rules Gitmo detainees must have access to U.S. courts

[DixieBelle]

In a 5-4 decision, the Supreme Court ruled today that the unlawful combatants held at Guantanamo Bay in Cuba must have access to American courts to challenge their detention. The ruling eliminates three attempts by the Bush administration and Congress to establish military tribunals that would handle the adjudication of terrorist cases without involving access to the civilian justice system:

The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.
The justices handed the Bush administration its third setback at the high court since 2004 over its treatment of prisoners who are being held indefinitely and without charges at the U.S. naval base in Cuba. The vote was 5-4, with the court’s liberal justices in the majority.

Justice Anthony Kennedy, writing for the court, said, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” …

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.

This will probably derail the hearings that had just begun at Gitmo for six members of the 9/11 conspiracy. By granting the unlawful combatants habeas corpus, the court has now eliminated the main reason for the military tribunal system — and for that matter, Gitmo itself. If the detainees can access American courts, they may as well be held on American soil.

The previous two rulings that struck down the tribunals forced the government to quickly pass laws that allowed for them. The Supreme Court has basically ruled that the Constitution applies worldwide rather than just to the US and its residents, which makes it pretty difficult to go back to the well a third time. Also, with very little time remaining in the Bush administration, they will not have enough time to push through a third attempt to address the Court’s concerns — and this ruling appears to be much broader than the two that preceded this one.

It seems absurd to apply criminal law to unlawful combatants captured during hostilities abroad. Will they require a Miranda reading, too? Do we have to bring the soldiers and Marines who captured them to the trial? In our 232-year history, when have we ever allowed that kind of access to enemy combatants not captured inside the US itself?

Update: Bear in mind that we do not yet have the full opinion, and it may be less egregious than what we have heard thus far. However, the quote from Kennedy certainly suggests an expansive ruling.

Squid Shark says in the comments that the work-around would be to classify them as POWs and be done with it. That presents a few problems, too. It eliminates the status of unlawful combatant, which then encourages all forces to eschew uniforms, legitimate state backing, etc etc. The unlawful-combatant designation and its circumscribed rights in Geneva intended to penalize those who hide among civilians for their attacks. Are we now to forego that?

Update II: 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:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other Constitutional protections as well). It blatantly misdescribes [sic] important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done today. I dissent.

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.

http://hotair.com/archives/2008/06/12/breaking-supreme-court-says-gitmo-detainees-must-have-access-to-us-courts/
follow the links to read more

[Chris_]

I've been reading about this decision all morning, and although it leaves a great number of issues unresolved regarding our actions in the WOT, it starts us down a very slippery slope toward the judiciary usurping the authority of both the executive and legislative branches  vis-a-vis conduct of military operations abroad.

Although this decision is basically limited to Habeous, it sets the stage for lawyers for "enemy combatants" to continue to petition SCOTUS for more and more "rights" until the USCMJ is no longer applicable in any situation dealing with captured prisoners in a wartime situation.

This is very bad law, and again I fear for the Republic if this sort of decisionmaking is allowed to continue.  Chief Justice Roberts is absolutely correct......this sets the stage for actions and events that this country will sorely regret.

doc

[Chris_]

I've been reading about this decision all morning, and although it leaves a great number of issues unresolved regarding our actions in the WOT, it starts us down a very slippery slope toward the judiciary usurping the authority of both the executive and legislative branches  vis-a-vis conduct of military operations abroad.

Although this decision is basically limited to Habeous, it sets the stage for lawyers for "enemy combatants" to continue to petition SCOTUS for more and more "rights" until the USCMJ is no longer applicable in any situation dealing with captured prisoners in a wartime situation.

This is very bad law, and again I fear for the Republic if this sort of decisionmaking is allowed to continue.  Chief Justice Roberts is absolutely correct......this sets the stage for actions and events that this country will sorely regret.

doc

According to the analysis I've heard - and tend to agree with - by limiting the scope of this ruling strictly to Habeas Corpus, USSC NeoComs leave open the ability to second guess anything the government does in handling these shitheads.  They can nickel and dime the whole damned lot of us to death, one "right" at a time.

[Randy]

We were bringing them all to the US for their trials when the plane crashed....Ooops.

[Chris_]

Nah. 

It'll be like ****in' Escape From Alcatraz.  They all got on a rubber ****in' raft made outta ****in' rain coats and just disappeared, your honor...

[Ptarmigan]

Don't like the ruling one bit.

[Chris_]

I can't imagine any AD boot on the ground over there is any happier about it - enlisted or officer.

[Airwolf]

Might as well frackin surrender to them the entire country.

[Odin's Hand]

I wouldn't be suprised if al-Qaeda releases a new propaganda video praising the majority of the justices for this ruling.

[Chris_]

I wouldn't be suprised if al-Qaeda releases a new propaganda video praising the majority of the justices for this ruling.

And endorses Boядt Osama for President in 2008.

[Chris_]

For the first time in history, the USC is, indeed, a suicide pact.

[Chris_]

And for a man who is promising to "nominate strict constructionists to the bench", of the 5 NeoCom justices that voted in the majority, Juan McCain voted to confirm Brier, Souter, Ginsberg and Kennedy.

Asshole. 

[TheSarge]

It's not the big attacks by al-Qaeda that will end up destroying this country...it's the little hits like this ruling that will spell our doom.

[Ptarmigan]

America needs an iron fisted dictator, like Vlad the Impaler or Park Chung-hee, to save the great nation.

[Chris_]

No, we just need to start distributing the torches and pitchforks.

And hot tar.  Gotta have LOADS of hot tar for the bureaucrats, politicians and lawyers that need to be put back in their place.  Oh damn.  Wait a minute, we need to be drilling for OIL before we can have hot tar.  ****ers.

[Ptarmigan]

No, we just need to start distributing the torches and pitchforks.

And hot tar.  Gotta have LOADS of hot tar for the bureaucrats, politicians and lawyers that need to be put back in their place.  Oh damn.  Wait a minute, we need to be drilling for OIL before we can have hot tar.  ****ers.

Just use corrosive acid and splash it on them. 

[formerlurker]

Move them.   

[rich_t]

OK...  New orders for the troops.  No longer take POWs or detain unlawful combatants.

Kill them at soonest opportunity.

For those detainees currently in custody, unlock there cells then shoot them for trying to escape as soon as they walk through the doors.

[USA4ME]

OK...  New orders for the troops.  No longer take POWs or detain unlawful combatants.

Kill them at soonest opportunity.

For those detainees currently in custody, unlock there cells then shoot them for trying to escape as soon as they walk through the doors.

Agreed.  That is the moral of this ruling:  Take no prisoners.

Either that or briefly detain them somewhere that the US courts don't have jurisdiction and get what info you can from them, and then kill them and dump the bodies somewhere they can never be found.

.

[Atomic Lib Smasher]

This is not a good day for our troops, nor our national safety. How the **** are ya gonna gather intelligence now? How are they going to prevent another 9/11 or worse?

Seriously, I feel like the country is in danger, and it's all thanks to these no good Marxist lawyers and Moaists in robes in the SC.

[TheSarge]

This is not a good day for our troops, nor our national safety. How the **** are ya gonna gather intelligence now? How are they going to prevent another 9/11 or worse?

Seriously, I feel like the country is in danger, and it's all thanks to these no good Marxist lawyers and Moaists in robes in the SC.

It may actually make it easier.

Think about it.


The ruling yesterday ONLY applies to detainees brought to the detention facilities in Cuba.

Doesn't cover any facilities we might decide to set up in one of the 'Stans or that one of them allow us to use for that purpose.

The SCOTUS ruling yesterday has actually laid the groundwork for all of the "secret torture prisons" the DUmmies accuse us of running anyway.

[DixieBelle]

Oh that's a good point. They failed to take into account the law of unintended consequences combined with the brilliance of our Military leaders and people who are 100% supportive of GWoT.

[Doc]

This is not a good day for our troops, nor our national safety. How the **** are ya gonna gather intelligence now? How are they going to prevent another 9/11 or worse?

Seriously, I feel like the country is in danger, and it's all thanks to these no good Marxist lawyers and Moaists in robes in the SC.

It may actually make it easier.

Think about it.


The ruling yesterday ONLY applies to detainees brought to the detention facilities in Cuba.

Doesn't cover any facilities we might decide to set up in one of the 'Stans or that one of them allow us to use for that purpose.

The SCOTUS ruling yesterday has actually laid the groundwork for all of the "secret torture prisons" the DUmmies accuse us of running anyway.

Actually Sarge, I don't think you are correct....based on the analyses that I have studied, the decision is not that "narrow", IOW it appears to apply to any "detainee" that is captured by any US personnel, anywhere in the world........they now have the "right" to petition a federal court for a hearing as to whether or not they are being "legally" detained.  This decision DOES NOT force a trial on the issue, but only a "Habeous" hearing.  The decision appears to not displace the "Military Tribunal" system that Congress put into place by law last year.....but I'm certain that that will be next on the agenda.....

Further, we already had "secret prisions" located in several countries in eastern Europe, until some asshole in the CIA "leaked" this information to the Washington Post, NYT, and LAT.......of course, there was a huge liberal outcry, and the countries that were "hosting" these detention centers got cold feet and bowed to international pressure to close them....which we did.....unless there might be some out there that the MSM haven't bribed some GS9 to reveal yet......

doc

[TheSarge]

Actually Sarge, I don't think you are correct....based on the analyses that I have studied, the decision is not that "narrow", IOW it appears to apply to any "detainee" that is captured by any US personnel, anywhere in the world........they now have the "right" to petition a federal court for a hearing as to whether or not they are being "legally" detained.  This decision DOES NOT force a trial on the issue, but only a "Habeous" hearing.  The decision appears to not displace the "Military Tribunal" system that Congress put into place by law last year.....but I'm certain that that will be next on the agenda.....

Further, we already had "secret prisions" located in several countries in eastern Europe, until some ******* in the CIA "leaked" this information to the Washington Post, NYT, and LAT.......of course, there was a huge liberal outcry, and the countries that were "hosting" these detention centers got cold feet and bowed to international pressure to close them....which we did.....unless there might be some out there that the MSM haven't bribed some GS9 to reveal yet......

doc

From the WSJ:

"The Nation will live to regret what the Court had done today," Justice Antonin Scalia writes at the end of his dissent in Boumediene v. Bush, the case in which a bare majority of the Supreme Court, for the first time ever, extended rights under the U.S. constitution to enemy combatants who have never set foot on U.S. soil.

It's worth noting that the nation has lived to regret things the court has done in earlier wars. In Schenck v. U.S. (1919), the court upheld the conviction of a Socialist Party leader for distributing an anticonscription flier during World War I--material that would unquestionably be protected by the First Amendment under Brandenburg v. Ohio (1969). In Korematsu v. U.S. (1944), the court held that the government had the authority to ban Japanese-Americans from certain areas of California, simply on the ground that their ethnic heritage rendered their loyalty suspect. Korematsu has never been overturned, but there is no doubt that it would be in the vanishingly unlikely event that the question ever came up again.

This war was different. Almost immediately after the 9/11 attacks, we began hearing dire warnings about threats to civil liberties. Five members of the high court seem to have internalized these warnings. As Justice Anthony Kennedy put it in his majority opinion today, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Kennedy and his colleagues seemed determined to err on the side of an expansive interpretation of constitutional rights.

And err they did. As Justice Scalia writes:

[Today's decision] will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today.
In establishing the detention facility at Guantanamo Bay, President Bush relied on a Supreme Court precedent of more than a half century's standing, Johnson v. Eisentrager (1950), which held that nonresident alien enemy combatants had no right to habeas corpus. As Scalia explains:

Had the law been otherwise, the military surely would not have transported prisoners [to Guantanamo], but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.

This points to a key limitation in today's ruling. The majority distinguished Guantanamo from the facility at issue in Eisentrager--a U.S.-administered prison in occupied Germany--on the ground that although the Guantanamo Bay Naval Base is technically on Cuban territory, America exercises "complete jurisdiction and control" over it. Thus, detainees have constitutional rights pursuant to today's ruling only if they are held at Guantanamo.

What does Boumediene mean in practice? Almost all Guantanamo detainees already have lawyers and have petitioned for habeas corpus. Those cases will go forward in the Washington, D.C., federal trial court. The judges there will have to settle on a standard of proof, and to rule on such tricky questions as how much classified material the government is obliged to provide to terrorists and their lawyers. Since the military's existing procedures are already overly lenient--Scalia lists several cases of released detainees showing up on the battlefield--it seems unlikely that many detainees will end up winning release.

Both Barack Obama and John McCain have said they want to close down Guantanamo, and this ruling makes that outcome more likely. There is little advantage to the U.S. in sending enemy combatants to a facility where they will immediately be able to lawyer up, and indeed, Guantanamo has admitted few new detainees in the past several years. A notable exception occurred in 2006, when President Bush transferred Khalid Sheikh Mohammad and a dozen or so other "high value" detainees there--a dramatic action that helped galvanize Congress to pass the Detainee Treatment Act This turns out to have been a mistake. KSM & Co. now have "constitutional rights." Had they been kept where they were, wherever that was, this would not be the case.

It's possible that Scalia is wrong when he predicts more Americans will die as a result of this ruling. It may be that al Qaeda is a weak enough enemy that America can vanquish it even with the Supreme Court tying one hand behind our back. Anyway, keeping future detainees away from Guantanamo should prevent them from coming within the reach of the justices' pettifogging.

Perhaps decades from now we will learn that detainees ended up being abused in some far-off place because the government closed Guantanamo in response to judicial meddling. Even those who support what the court did today may live to regret it.

http://online.wsj.com/article/SB121328847934668413.html

[Chris_]

^I suspect that there will be a lot of discussion about this, but your bolded sentance appears to be from the WSJ writer's interpretaion of Justice Scalia's minority opinion, not the statements in Kennedy's majority opinion........

You might be right, but all that I've read, and two discussions that I have participated in with two constitutional attorneys (one of which is my daughter-in law, incidently), indicate otherwise.

We'll just have to wait and see.....

doc