The Supreme Court Decision
Guantanamo Global Justice Initiative
On June 12, 2008, the Supreme Court ruled in an historic
decision in Boumediene v. Bush/Al Odah v. United States that
the detainees at Guantánamo Bay have a constitutional right
to habeas corpus, to challenge their detention before a
neutral judge in a real court. The men at Guantánamo have
been struggling for this basic right to be recognized since
2002, when the first prisoners were brought to Guantánamo
Bay, and when the Center for Constitutional Rights’ first
challenge to their detention was filed. In 2004, in Rasul v.
Bush, the Supreme Court upheld the detainees' statutory right
to habeas corpus, and in 2006, in Hamdan v. Rumsfeld, the
high court rejected the Bush administration's framework for
military commissions and upheld the rights of the detainees
under the Geneva Conventions.
In the decision, the Court strongly criticized the President and
Congress's attempt to declare that because Guantánamo
was outside the sovereign territory of the United States, the
Constitution did not apply. The Court firmly stated that "To
hold that the political branches may switch the Constitution on
or off at will would lead to a regime in which they, not this
Court, say 'what the law is.'" Furthermore, the Supreme Court
held that the procedures created by the Detainee Treatment
Act were not an adequate substitute for real habeas hearings
and emphasized that the length of our clients' detention
required an end to further delays.
With Justice Kennedy writing for the majority, the opinion
begins with a lengthy survey of historical habeas cases in
which common law courts considered cases of noncitizens
imprisoned without trial. Acknowledging the uniqueness of
the Administration’s practices at Guantánamo, the Court
found that no historical habeas case offered by either side
was directly on point and, instead, turned to the fundamental
principles underlying the purpose of habeas corpus: to allow
the courts to act as a check against the abuse of Executive
power. “[F]rom an early date, it was understood that the
King, too, was subject to the law.” The Court emphasized
that the Suspension Clause of the U.S. Constitution was
designed by the Founders to “protect against the cyclical
abuses of the writ by the Executive and Legislative Branches.”
It noted that the “Framers view freedom from unlawful restraint
as a fundamental precept of liberty.” And central to the
protection of this liberty is the “duty and authority of the
Judiciary to call the jailer to account.” These separation-of-power
principles guided the Court’s reasoning throughout its
opinion.
Background
The decision in Boumediene v. Bush/Al Odah v. United States
is the third Supreme Court decision to affirm the rights of
Guantánamo detainees and comes after a very long legal
battle.
Over six years ago, on January 11, 2002, the first prisoners
were brought from Afghanistan to Guantánamo Bay Naval
Base in Cuba. They were quickly labeled as “terrorists,” “terrorism
suspects” and the "worst of the worst," with no access to the
courts to determine their legal rights and no evidence laid out
against them. In fact, the government sought to keep secret even
the names of detainees. One month after these first 20 men
arrived, the Center for Constitutional Rights filed the first case on
behalf of detainees at Guantánamo, seeking a habeas corpus
hearing in which the legitimacy of their detention would be
reviewed by an impartial federal judge.
CCR's case, Rasul v. Bush, worked its way up to the Supreme
Court where, in a historic decision, the high court ruled that
Guantánamo detainees could legally challenge their detention
in a court of law. Since that decision was rendered on June 28,
2004, the Bush administration has done everything possible to
evade the court's decision and strip the detainees of access to
the courts.
Shortly following the Rasul decision, the administration created
Combatant Status Review Tribunals, or CSRT’s. These proceedings,
in which detainees do not have access to attorneys and in
which decisions are made on the basis of coerced, secret, and
often nonexistent evidence, are widely viewed as sham proceedings
by attorneys and human rights activists. In December 2005,
Congress passed the Detainee Treatment Act, which purported
to protect detainees from abuse, but actually undermined the
Rasul decision and attempted to prohibit future habeas corpus
claims by detainees.
On June 29, 2006, the administration's plans for Guantánamo as an extra-legal zone of operation were again damaged by a
decision of the Supreme Court, when, in Hamdan v. Rumsfeld,
the court ruled that the administration's planned military commissions
violated U.S. and international law. In addition, accepting
an argument made by CCR in a key amicus brief, the court ruled
that the protections of the Geneva Conventions applied to
Guantánamo detainees.
The response of the administration - and Congress - to the Hamdan
decision was, again, not to recognize the detainees' rights, but instead
to craft the Military Commissions Act of 2006, legislation that
attempted to strip the federal courts' jurisdiction to hear detainees'
habeas claims retroactively, and allows the government to arrest and
hold any non-citizen - including U.S. legal residents - anywhere in the
world, at any time, and hold them indefinitely, should he or she be
labeled an "enemy combatant" or even merely "awaiting" such a
determination.
CCR's post-Rasul case, Al Odah v. United States, consolidated with
Boumediene v. Bush, was filed shortly after the Rasul decision on
behalf of Kuwaiti detainees, now includes detainees from Bahrain,
Yemen, Libya, Kuwait, and one British resident originally from Jordan,
currently held at Guantánamo.
Both the Al Odah and Boumediene habeas corpus petitions were filed
in July 2004, shortly after the historic Rasul v. Bush Supreme Court
decision that affirmed the detainees' right to challenge their detention.
In January 2005, District Judge Joyce Hens Green held in Al Odah
that detainees possess "the fundamental right to due process of law
under the Fifth Amendment" and that certain detainees are protected
by the Geneva Conventions. U.S. District Judge Richard Leon reached
the opposite conclusion in Boumediene, ruling that the detainees
possess no substantive rights to vindicate through habeas corpus. The
two cases were consolidated and appealed to the D.C. Circuit Court
of Appeals.
On February 20, 2007, two years after the cases were first appealed,
a divided panel of three judges of the D.C. Circuit Court of Appeals
ruled 2-1 in the consolidated case that the Guantánamo detainees
have no constitutional right to habeas corpus review of their detentions
in federal court. Because the court also found the MCA eliminated any
statutory right of access to the courts under habeas corpus, it dismissed
their cases.
On April 2, 2007, the Supreme Court announced that it would not be
hearing the cases of the Guantánamo detainees for the time being.
The Court denied the Center for Constitutional Rights (CCR) and cocounsel's
motion to hear the case with three justices dissenting and two
issuing a statement that the detainees should exhaust the process set up
by the Detainee Treatment Act (DTA).
On June 29, 2007, the Supreme Court, in a rare reversal, announced
that it would in fact hear the consolidated Al Odah and Boumediene
cases in the coming court term (2007-2008). This marked the third time
in the history of the detention camp at Guantánamo Bay that the
Supreme Court will hear a case concerning the rights of the detainees.
On December 5, 2007 the Supreme Court of the United States heard
arguments in Boumediene v. Bush/Al Odah v. United States. The
Boumediene/Al Odah case was the first to directly challenge the
constitutionality of the Military Commissions Act of 2006 and its
stripping of habeas corpus jurisdiction from the federal judiciary.
The court's opinion in Boumediene v. Bush/Al Odah v. U.S. was issued
on June 12, 2008.
What now?
Moving forward from this historic victory for Executive accountability,
we hope that the lower courts will quickly move to hold hearings in the
over 200 pending individual habeas corpus cases where detainees
are challenging their indefinite detention without charges. We
anticipate that many of these cases will be decided swiftly because the
government lacks any factual or legal basis for imprisoning the men.
Without this decision these men might have remained in detention
forever without ever having a real chance to argue for their release
before an impartial court. With habeas these men - so many of whom
have been officially cleared for release by the military - would never
have been locked up and abused because no court was watching.
We believe the majority of them will be released once the executive is
forced to show up in front of a federal judge and justify their detention
with hard evidence.
Other significant issues may be litigated as well: most detainees are
being held in solitary confinement, including dozens who are cleared
for release; most are losing their minds as a result. In habeas proceedings,
petitioners should be able to argue for more humane conditions of
confinement. Many detainees are also cleared for release to countries
where they may face torture; these men are basically in the position of
refugees and countries that can offer them asylum will have to be found
before they can be released. A significant issue for the habeas cases
will also be challenges to the government’s reliance upon information
obtained through torture or unlawful coercion to justify the detentions.
Major General Jay Hood, former commander at Guantánamo,
admitted to the Wall Street Journal that “[s]ometimes we just didn't get
the right folks,” but innocents remain at the base because “[n]obody
wants to be the one to sign the release papers. ... there's no muscle in
the system.” Historically, the federal courts have been that muscle. This
decision ensures that they will be.
Ultimately, the administration’s strategy with Guantánamo was to run
out the clock and leave its mess – much like the war in Iraq – to the next
president to clean up. The Supreme Court’s decision – a historic victory
for Executive accountability to the courts – will, we hope, prevent this
administration from doing so.
