[Peace-discuss] SUPREME COURT DECISION ON HABEAS CORPUS

[Barbara kessel]

AN ANALYSIS OF THE SUPREME COURT DECISION ON HABEAS CORPUS
BY THE CENTER FOR CONSTITUTIONAL RIGHTS............................

In considering the extraterritorial application of the Constitution to
Guantánamo, the Court adopted a practical approach it has applied in
past cases.  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.'" Several
factors warranted application of the Suspension Clause to Guantánamo,
including (1) that the petitioners are noncitizens who dispute their
status as "enemy combatants" as determined by CSRTs in an unfair
proceeding, (2) the United States exercises exclusive jurisdiction and
control over Guantánamo, with no other country's laws applying, and
(3) no credible arguments exist that habeas proceedings would impede
any military mission at Guantánamo.  The Court concluded that the
individuals at Guantánamo have a right under the Suspension Clause to
challenge their detention, and the pragmatic approach it took in
reaching that conclusion still leaves space for similar challenges to
U.S. detention facilities elsewhere in the world.

The Court then concluded that the DTA review was not an adequate
substitute for a habeas petition.  Fundamentally, a habeas proceeding
– and any substitute – must afford the petitioner an effective and
meaningful ability to correct any errors in the decision under review
(here, the determination that the petitioner is an "enemy combatant"),
an opportunity to challenge the sufficiency of the government's
evidence, and the opportunity to present and have a court consider
exculpatory evidence not considered by the tribunal below.  From the
initial proceedings in pending DTA cases and the statute itself, the
Court concluded that it failed to provide an adequate substitute for
habeas. Specifically, the DTA statute fails to provide for release
from custody as a remedy, offers no procedures for petitioners to
present new, exculpatory evidence and to bring the full range of legal
challenges available in a habeas proceeding.  As a result, the Court
struck down that portion of the DTA that deprived the petitioners of
their constitutional right to habeas.

Throughout the opinion, the Court heeded the Center's emphasis on the
lengthy imprisonment of our clients without trial.  "The gravity of
the separation-of-powers issues raise by these cases and the fact that
these detainees have been denied meaningful access to a judicial forum
for a period of years render these cases exceptional."  The Court
refused to countenance further delay of the merits of the detainees'
challenges to their imprisonment.  Rather than wait for the Court of
Appeals to rule on the lawfulness of the DTA proceedings or attempt to
construe the DTA in a manner that rendered it constitutional, the
Court brought much needed finality to this drawn-out struggle.  "[T]he
cost of delay can no longer be borne by those who are held in custody.
 The detainees in these cases are entitled to a prompt habeas corpus
hearing."

Two dissenting opinions written by Chief Justice Roberts and Justice
Scalia capture the viewpoints of the conservative wing of the Court
that the prisoners at Guantánamo are not entitled to the writ of
habeas corpus, and that the rights to which they are entitled are
fully satisfied by the review mechanism Congress established in the
DTA.

Chief Justice Roberts' dissent asserts that Congress has designed a
system that protects "whatever rights the detainees may possess," and
that the Court should therefore not even be reviewing this case.
Repeating one of the military's favorite (and inaccurate) talking
points, the Chief Justice began his dissent by saying "[t]oday the
Court strikes down as inadequate the most generous set of procedural
protections ever afforded aliens detained by this country as enemy
combatants."

Justice Scalia's dissent asserts further that "aliens abroad" are not
entitled to the protection of the writ of habeas corpus, and never
have been.  Going a step beyond the Chief Justice's dissent, Justice
Scalia contends that the Suspension Clause has no relevance for the
prisoners at Guantánamo, and thus the majority's intervention cannot
be justified.  Notably, Scalia begins his dissent with a rare
exploration of what he perceives to be the "disastrous consequences"
of the majority's decision, including the astonishing assertion that
"It [the majority opinion] will almost certainly cause more Americans
to be killed."

Justice Kennedy, the majority opinion's author, has a reputation for
pragmatism that comes forth in today's opinion, which is rooted in a
sound practical sense and firmly depoliticizes the legal questions
raised by Guantánamo. The decision today allows courts to do what they
do best: to decide whether the government has the right to hold
someone in detention, sorting out claims of factual innocence by
weighing the evidence.

We hope that the lower courts will quickly move to hold hearings in
the 200-odd pending individual habeas corpus cases where detainees are
challenging their indefinite detention without charges. Already,
today, the Chief Judge of the District Court for the District of
Columbia has called for a meeting of the judges to determine how to
proceed.  Numerous lawyers filed notices and motions today in pending
habeas cases to move them forward immediately.  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
today's 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.

The decision's impact upon the pending military commission cases is
indirect. It is likely those trials will continue to progress at their
current halting pace. Today's opinion only means that the defendants
in those commissions proceedings – less than 20 men are currently
charged – may commence parallel proceedings arguing that they should
not have ever been detained in the first place.


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.
Today's 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. Today's decision – a historic victory for
Executive accountability to the courts – will, we hope, prevent this
administration from doing so.