June 13, 2008 | Commentary on Crime
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.
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 government.
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 intelligence gathering.
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 CSRT's.
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 killed."
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