Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers...Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person...
The laws and Constitution are designed to survive, and remain in force, in extraordinary times.
For literally years now, I have been ranting on this blog about how utterly nonsensical the Bush Administration's arguments about non-combatants and Habeas Corpus are. And my argument has been as simple as the words of the constitution itself:
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.
Given that we are living through neither rebellion nor invasion, only the first half of the sentence applies: "The Privilege of the Writ of Habeas Corpus shall not be suspended."
Today, I'm relieved beyond words to find out that the Supreme Court of the United States agreed with my argument and upheld the clear meaning of the words of our constitution.
What was at issue here was not how we treat accused terrorists, although that is certainly important. What was at issue was whether we were going to allow ourselves to be ruled by our laws or by our fears. By a 5-4 decision, the Court announced that we would not allow our fears to prevail.
And make no mistake about it, that was what was at stake here. The lead quote was from Kennedy's majority opinion. The following quote is from Scalia's dissent:
America is at war with radical Islamists ... The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.
For reasons that I cannot understand, all of our major media organizations are downplaying this decision. What's bad for the nation is unfortunately good for the blogosphere. And the sphere has been buzzing about this today...
SCOTUSblog leads the parade:
In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the Constitution allows -- when the country faces rebellion or invasion.The Court stressed that it was not ruling that the detainees are entitled to be released -- that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that "we do not address whether the President has authority to detain" individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba; that, too, it said, is to be considered first by the District judges.
The Court also declared that detainees do not have to go through the special civilian court review process that Congress created in 2005, since that is not an adequate substitute for habeas rights. The Court refused to interpret the Detainee Treatment Act -- as the Bush Administration had suggested -- to include enough legal protection to make it an adequate replacement for habeas. Congress, it concluded, unconstitutionally suspended the writ in enacting that Act.
The Court also found serious defects in the process that the Pentagon set up in 2004 to decide which prisoners are to be designated as "enemy combatants" -- the status that leads to their continued confinement. This process is the system of so-called Combatant Status Review Tribunals. The procedures used by CSRTs, the Court said, "fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review."
...the Constitution says is that absent either condition, "The Privilege of the Writ of Habeas Corpus shall not be suspended". What, one might ask, is this privilege? Who enjoys it, and where, and in what circumstances? Plainly, if I were detained by the FBI here in Baltimore, I would be covered. Equally plainly, if some Chinese citizen were detained by the Chinese government in Beijing, she would not have, in virtue of that fact, the right to file a petition of habeas corpus in US court.So here are two questions the Court needs to answer: who has habeas rights? And where do they extend? The court's answer to the first question (who?) is, basically: everyone has them. (Meaning: if you are detained by the US government, in circumstances in which habeas rights would normally obtain, your lack of citizenship is no obstacle.)
As for the second question (where?), the Court looks at its own precedents, which concern such fascinating questions as: to what extent does the US Constitution extend to territories and possessions? It also looks at the British common law from before the Constitution was adopted, to see what the framers of the Constitution and those who adopted it might have understood "the" Privilege of the Writ of Habeas Corpus to involve. Did it extend, say, to people detained by the British in India, which was not then part of the British empire? What about Ireland and Scotland? And so on and so forth. The Court concludes that these cases do not settle the issue one way or another.
The government argues that people detained in Guantanamo do not have habeas rights, because the US government does not have legal sovereignty over Guantanamo. (The lease agreement with Cuba apparently says that Cuba retains "ultimate sovereignty" over Guantanamo.) Petitioners argue that the US nonetheless exercises complete control over Guantanamo, and so habeas rights should extend there. The Court sides with the petitioners, and its language is quite striking:
"The Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. 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. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" but are subject "to such restrictions as are expressed in the Constitution." Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803).These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain."
Or, in short: if we accept the government's argument, we would concede that it can legally do what it has tried to do in fact: to create a legal black hole in which it can act outside the law and the Constitution. We cannot do that.
On the basic habeas question, perhaps the most explanatory line of the majority opinion is this one: "The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." In other words, because the Government chose to detain these prisoners at GTMO for the very purpose of avoiding a judicial check on the legality of the detentions, the Court will ensure that the constitutional guarantee extends to the naval base....
But that doesn't mean that habeas will be available wherever and whenever the military detains alleged combatants.It will not be available, for instance, in the first few days or weeks of detention at a facility close to a field of battle or in "an active theater of war." The military must be given deference to utilize "reasonable screening and initial detention," even if only "under lawful and proper conditions of confinement and treatment and "for a reasonable period of time."
More broadly, the Court suggests that habeas rights will be circumscribed, perhaps even denied, if and where the government demonstrates that such proceedings would "divert the attention of military personnel from other pressing tasks," or where the government presents "credible" arguments that the proceedings would "compromise[]" a "military mission." Moreover, the Court suggests that habeas rights would be more limited or dubious where adjudicating the petition "would cause friction with the host government."
In all of these cases, Justice Kennedy emphasizes, a "relevant consideration in determining courts' role" is "whether there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power." Where there are no such adequate alternative protections against arbitrary governmental power, habeas rights will not be denied simply because of the foreign location: "[C]ivilian courts and the Armed Forces," after all, "have functioned along side each other at various points in our history."
Guantanamo detainees accused of being "enemy combatants" have the right to challenge the validity of their detention in a full-fledged U.S. federal court proceeding. The ruling today is the first time in U.S. history that the Court has ruled that detainees held by the U.S. Government in a place where the U.S. does not exercise formal sovereignty (Cuba technically is sovereign over Guantanamo) are nonetheless entitled to the Constitutional guarantee of habeas corpus whenever they are held in a place where the U.S. exercises effective control.
In upholding the right of habeas corpus for Guantanamo detainees, the Court found that the "Combatant Status Review Tribunals" process ("CSRT") offered to Guantanamo detainees -- mandated by the John-McCain-sponsored Detainee Treatment Act of 2005 -- does not constitute a constitutionally adequate substitute for habeas corpus. To the contrary, the Court found that such procedures -- which have long been criticized as sham hearings due to the fact that defendants cannot have a lawyer present, government evidence is presumptively valid, and defendants are prevented from challenging (and sometimes even knowing about) much of the evidence against them -- "fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review." Those grave deficiencies in the CSRT process mean that "there is considerable risk of error" in the tribunals' conclusions.The Court's ruling was grounded in its recognition that the guarantee of habeas corpus was so central to the Founding that it was one of the few individual rights included in the Constitution even before the Bill of Rights was enacted. As the Court put it: "the Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom." The Court noted that freedom from arbitrary or baseless imprisonment was one of the core rights established by the 13th Century Magna Carta, and it is the writ of habeas corpus which is the means for enforcing that right. Once habeas corpus is abolished -- as the Military Commissions Act sought to do -- then we return to the pre-Magna Carta days where the Government is free to imprison people with no recourse.
In its decision, the Court emphasized (and revived) some of the most vital principles of our system of Government which have been trampled upon and degraded over the last seven years (emphasis added):
The Framers' inherent distrust of government power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. . . .
Where a person is detained by executive order rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. . . . The habeas court must have sufficient authority to conduct a meaningful review of both the cause of detention and the Executive's power to detain. . . .Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to separation of powers. . . .
The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system, they are reconciled within the framework of law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, part of that law.
In ruling that the CSRTs woefully fail to provide the constitutionally guaranteed safeguards, the Court quoted Alexander Hamilton's Federalist No. 84: "The practice of arbitrary imprisonments, in all ages, is the favorite and most formidable instruments of tyranny." It is that deeply tyrannical practice -- implemented by the Bush administration and authorized by a bipartisan act of Congress -- which the U.S. Supreme Court, today, struck down.
What will happen with all the torture evidence? Civvie courts don't have that mute button.
I wonder, in practice, what this will mean? As near as I can tell, there's not a single country in the world willing to take these prisoners even if they get a trial and are judged innocent. This means that we either release them in the United States or -- what? Dump them on a military cargo plane and release them in Afghanistan, where no one can stop us from doing it? There's no question that the court did the right thing today, but I wonder what the end game is here?
No doubt even more on this tomorrow...
