June 13, 2008
By Charles "Cully" Stimson
In a sweeping decision that will have myriad
consequences -- foreseen and unforeseen --the Supreme Court
found that the right of habeas corpus under the U.S. Constitution
applies to terrorist detainees held at Guantanamo Bay,
In a controversial 5-4 decision written by Justice Kennedy that
is already being reported as a major loss for the Administration's
detainee policy, the Supreme Court ruled that the petitioners
detained in Guantanamo Bay, Cuba, have the constitutional privilege
of habeas corpus; that the Detainee Treatment Act's (DTA)
procedures for reviewing their statuses was not an adequate and
effective substitute for the habeas writ; and that section 7 of the
Military Commissions Act (MCA) is an unconstitutional suspension of
the writ. In other words, the Constitution applies to
unlawful enemy combatants at Gitmo, and the one-time Combatant
Status Review Tribunals (CSRT's) didn't cut it.
According to the majority opinion, the writ may be suspended
only when public safety requires it in times of rebellion or
invasion. None of the cases cited by either side in this
dispute, regarding the writ's geographic scope at common law, was
dispositive. The Court also rejected the government's reading
of Johnson v. Eisentrager (U.S. courts had no jurisdiction over
German war criminals held in a U.S.-run German prison) as
formalistic and constricted. Extraterritoriality questions,
it stated, turn on "objective factors and practical concerns, not
formalism." The Constitution grants Congress and the
President the power to acquire, dispose of, and govern territory,
not the "power to decide when and where its terms apply." The
political branches may not "switch the Constitution on and off at
will," nor may they decide "what the law is." In essence, the
Court said that because the U.S. has exclusive dominion and control
over the military base at the U.S. Naval Station at Guantanamo Bay,
the Constitution applies to anyone held there by the United States
Justice Kennedy rejected the government's suggestion that the
case should be sent back to the D.C. Circuit Court for further
resolution. Due to the "exceptional circumstances" presented
in this case -- the "grave separation of powers issues" and those
petitioners have been denied "meaningful access to a judicial forum
for years" -- Justice Kennedy ruled that the petitioners could
proceed with their habeas actions in the District Court
immediately. And rather that offer a comprehensive summary of
the actual procedures for adequate habeas, the Court said merely
that habeas entitles the detainee to a "meaningful opportunity to
demonstrate that he is being held" and that the habeas court must
have the power to order the "conditional release of an individual
unlawfully detained." The Court recognized that certain
accommodations might be necessary to carry out the ruling,
including, but not limited to, channeling the cases to a single
federal District Court and protecting sources and methods of
The practical effect of the decision is that approximately 200
detainees at Guantanamo (70 of the remaining 270 have already been
approved for transfer or release) will be able to file a lawsuit in
federal district court and force the government to prove that they
are unlawful enemy combatants. The government will have to
decide whether it wants to prove that each detainee is an unlawful
enemy combatant in federal district court, and if so, will have to
pull together the evidence quickly to prepare for the
habeas/administrative hearings in court.
The decision also calls into question whether the military
commissions will continue as planned. Under the Military
Commissions Act, the court only has jurisdiction over detainees
properly deemed to be "unlawful enemy combatants." Each of
the 200 detainees remaining at Gitmo went through a CSRT, and each
was determined to be an unlawful enemy combatant. Armed with
this new decision, lawyers for the commissions' defendants will
rightfully argue that the military commissions does not have
jurisdiction over their clients because those clients were
determined to be unlawful enemy combatants by the now discredited
No doubt, if there are habeas hearings in federal district
court, some judges will ultimately find that many of the detainees
were properly classified as unlawful enemy combatants. Other
cases may result in a judge finding that the specific detainee is
not an unlawful enemy combatant, and the judge will order the
detainee released. Whether any country will willingly accept
that detainee remains to be seen.
Although it is too early to tell, other unintended consequences
of this decision might include detainees petitioning the government
for asylum once ordered released by a federal judge (because no
country wants them), and/or suing the United States for millions of
dollars for "unlawful imprisonment."
Chief Justice Roberts wrote a scathing dissent, joined by
Scalia, Thomas, and Alito, arguing that the court struck down the
"most generous set of procedural protections ever afforded aliens
detained by this country" without bothering to say what due process
rights the detainee possess or how the statute fails to vindicate
those rights and before the statute was even allowed to be
tested. According to the Chief, the majority's opinion was
less about the detainees and all about the "control of federal
policy regarding enemy combatants."
Justice Scalia, in a separate dissent, predicted that the
holding will "almost certainly cause more Americans to be
Charles D. Stimson is a Senior Legal Fellow at the Heritage
Foundation, and a former Deputy Assistant Secretary of Defense for
Detainee Affairs in 2006-2007.
First appeared in Human Events
In a sweeping decision that will have myriad consequences -- foreseen and unforeseen --the Supreme Court found that the right of habeas corpus under the U.S. Constitution applies to terrorist detainees held at Guantanamo Bay, Cuba.
Rule of Law Initiative of the Leadership for America Campaign
Charles "Cully" Stimson
Manager, National Security Law Program and Senior Legal Fellow
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