The Supreme Court’s Guantánamo ruling: what does it mean?

13.6.08

The US Supreme CourtThose who cherish the United States’ historical adherence to the rule of law — myself included — were delighted to hear that the US Supreme Court ruled on Thursday, in the case of Boumediene v. Bush (PDF), that the prisoners at Guantánamo “have the constitutional right to habeas corpus,” enabling them to challenge the basis of their detention, under the terms of the 800-year old “Great Writ” of habeas corpus, which prohibits the suspension of prisoners’ rights to challenge the basis of their detention except in “cases of rebellion or invasion.”

That this decision was required at all was remarkable, as it was almost four years ago, on 29 June 2004, that the Supreme Court ruled, in the case of Rasul v. Bush, that Guantánamo — chosen as a base for the prison because it was presumed to be beyond the reach of the US courts — was “in every practical respect a United States territory,” and that the prisoners therefore had habeas corpus rights, enabling the prisoners to challenge the basis of their detention.

The difference between then and now is that, in Rasul v. Bush, the Supreme Court ruled only that the prisoners had statutory habeas rights, and, following the ruling, the executive responded in two ways that completely undermined the Supreme Court’s verdict.

The first of these — as lawyers began applying to visit prisoners to establish habeas cases — was the establishment of Combatant Status Review Tribunals (CSRTs) at Guantánamo, which were set up, ostensibly, to review the prisoners’ designation as “enemy combatants,” who could be held without charge or trial. In reality, they were a lamentable replacement for a valid judicial challenge. Although the prisoners were allowed to present their own version of the events that led up to their capture, they were not allowed legal representation, and were subjected to secret evidence that they were unable to see or challenge.

Last June, Lt. Col. Stephen Abraham, a veteran of US intelligence, who worked on the CSRTs, delivered a damning verdict on their legitimacy, condemning them as the administrative equivalent of show trials, reliant upon generalized and often “generic” evidence, and designed to rubber-stamp the prisoners’ prior designation as “enemy combatants.” Filed as an affidavit in Al Odah v. United States, one of the cases consolidated with Boumediene, Lt. Col. Abraham’s testimony was regarded, by legal experts, as the trigger that spurred the Supreme Court, which had rejected an appeal on behalf of the prisoners in April 2007, to reverse its decision and to agree to hear the cases. The reversal was so rare that it had last taken place 60 years before.

The executive’s second response to Rasul was to remove the prisoners’ statutory rights, persuading the third strand of the American power base — the politicians in Congress — to pass two hideously flawed pieces of legislation: the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006.

The Detainee Treatment Act (DTA), which originated as an anti-torture bill conceived by Senator John McCain, was hijacked by the executive, who managed to get an amendment passed that removed the prisoners’ habeas rights, although the legislation was so shoddy that it was not entirely clear whether the prisoners had been stripped of their rights entirely, or whether pending cases would still be considered. What was clear, however, was that the DTA limited any review of the prisoners’ cases to the DC Circuit Court (rather than the Supreme Court), preventing any independent fact-finding to challenge the substance of the administration’s allegations, and mandating the judges to rule only on whether or not the CSRTs had followed their own rules, and whether or not those rules were valid.

In the fall of 2006, following a second momentous decision in the Supreme Court, in Hamdan v. Rumsfeld, in which the justices ruled that the proposed trials by Military Commission for those held at Guantánamo (which also relied on the use of secret evidence) were illegal under domestic and international law, the executive persuaded Congress to pass the Military Commissions Act (MCA), which reinstated the Military Commissions and also removed any lingering doubts about the prisoners’ habeas rights, stating, explicitly, “No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” In a further attempt to stifle dissent, the MCA defined an “enemy combatant” as someone who has either engaged in or supported hostilities against the US, or “has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the secretary of defense.”

The wheels of justice revolve so slowly that it has taken over a year and a half since the passing of the MCA for the Supreme Court to stamp its authority on the conceits of both the executive and Congress, and cynics can argue that all of this could have been avoided if the Supreme Court had insisted on the prisoners’ Constitutional habeas rights in June 2004. Nevertheless, Thursday’s ruling — however belatedly — comprehensively demolishes the habeas-stripping provisions of both the DTA and the MCA.

In no uncertain terms, Justice Anthony Kennedy, delivering the Court’s majority opinion, ruled that the “procedures for review of the detainees’ status” in the DTA “are not an adequate and effective substitute for habeas corpus,” and that therefore the habeas-stripping component of the MCA “operates as an unconstitutional suspension of the writ.” These judgments, which should soundly embarrass the nations’ politicians, could hardly be more clear, and although it is uncertain how the administration will respond in its dying days, it seems unlikely that the executive will be able to prevent a slew of habeas cases, which have, effectively, been held in a kind of legal gridlock for years, from progressing to court.

The only other obvious recourse, which will also help the prisoners to escape from the intolerable legal limbo in which they have been held for up to six and a half years, is that the administration will suddenly develop a previously undreamt-of diplomatic dexterity, and will make arrangements for the release of a large number of the 273 remaining prisoners without having to endure the acute embarrassment of justifying, in a proper courtroom, the hearsay, the innuendo, the generic information masquerading as evidence, and the fruits of torture, coercion and bribery that it has used to imprison these men for so many years.

Since 9/11, sadly, justice in the US has moved so slowly that on occasion it has appeared to be dead, but Thursday’s verdict is a resounding triumph for the importance of the law as a check on unfettered executive power and the caprice of politicians. As Justice Kennedy stated in his opinion, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” He added, “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,’” a quote from an 1803 ruling, in which the Supreme Court explained its right to review acts of Congress, which, of course, reinforces the supremacy of the separation of powers that lies at the heart of the United States Constitution.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on AlterNet, the Huffington Post, CounterPunch and Antiwar.com.

See the following for a sequence of articles dealing with the crucial testimony of Lt. Col. Stephen Abraham and other Guantánamo whistleblowers: Guantánamo whistleblowers: Lt. Col. Stephen Abraham is not the first insider to condemn the kangaroo courts (July 2007), The Guantánamo whistleblower, a Libyan shopkeeper, some Chinese Muslims and a desperate government (July 2007), Guantánamo: more whistleblowers condemn the tribunals (August 2007), A New Guantánamo Whistleblower Steps Forward to Criticize the Tribunal Process (October 2007), Guantánamo whistleblower launches new attack on rigged tribunals (November 2007), Guantánamo and the Supreme Court: the most important habeas corpus case in modern history (December 2007), Guantánamo and the Supreme Court: What Happened? (December 2007), Guantánamo whistleblower Stephen Abraham addresses European Parliament (March 2008), An interview with Guantánamo whistleblower Stephen Abraham (Part One) (December 2008), An interview with Guantánamo whistleblower Stephen Abraham (Part Two) (December 2008), Guantánamo: Lies, Damned Lies and Statistics (February 2009).

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).

69 Responses

  1. Andy Worthington says...

    I don’t normally post comments on my articles from other blogs, but I was impressed by this comment from wldswmmr, after this article was published on the Huffington Post:

    “I would like to thank you, Mr. Worthington, for your dedication to this cause, and for your deeply humane decency in following this story to this point. I read your book about Guantánamo and was impressed with its thorough research and overall fairness. Your point has never been to dismiss the possibility that prisoners held at Guantánamo might, in some instances, pose a security risk to the world. It is that the United States has never tried to institute a fair and reasonable procedure for determining who among the prisoners have been unfairly detained and deprived not just of justice, but of the right to any avenue of address at all. When the history of the Bush Administration is written, the chapter on Guantánamo will epitomize everything that was wrong with a system that relied on fear-mongering to suppress the voices of justice and to institutionalize racism and bigotry.”

    Thanks.

  2. Andy Worthington says...

    I also received the following message from Kenny Michael, who had an interesting take on the decision:

    “The crazy thing about the Supreme Court decision is that if the Court had accepted the US government’s argument, it would have given the Cuban courts jurisdiction over the Gitmo detainees! The government argued that jurisdiction depended on de jure sovereignty and de jure sovereignty at Gitmo lay with Cuba. Thus, the Cuban courts could order the release of prisoners, who could then claim habeas corpus, not on the basis of any original habeas corpus jurisdiction of the US courts, but in execution of a foreign judgment, in regard to which they had jurisdiction inasmuch as the unlawful jailer was the US military, over which the US courts unquestionably had jurisdiction! I would guess that part of the reason why they decided as they did was so as not to make total fools of themselves in front of the whole legal world by landing in that situation!”

  3. Michael Meo says...

    What gives me pause about this case is, not only is it a split decision, decided by the narrow margin of a single vote, but it also took place only because of an extremely rare reversal, in April 2007, of the Court’s decision not to hear this case.

    As you point out, the last occasion for such a reversal was 60 years ago.

    Stephen Abraham’s career suicide, thank heavens, was not without effect. The continuation of some semblance of the rule of law in the United States depended upon it.

  4. Lough Callahan says...

    Where can I get a copy of the full opinions? I am predisposed to support your position strongly but want to know the specific issue, and read the ruling and dissent, to be in a position to confirm this belief and try to convince others.

  5. Andy Worthington says...

    I recently established contact with Chris Floyd, a fearless critic of the crimes of the Bush administration, after he mentioned an article on mine in a piece about the Boumediene decision on his Empire Burlesque site:
    http://www.chris-floyd.com/content/view/1540/135/
    This is not the first time Chris has mentioned my work, but it was the first time, for some inexplicable reason, that I had discovered how to get in touch with him.
    If you like what’s here, I’m sure you’ll like Chris’ work. Pay him a visit.

  6. A Letter To Barack Obama From A Guantánamo Uighur by Andy Worthington « Dandelion Salad says...

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  11. Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses by Andy Worthington « Dandelion Salad says...

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  13. Life After Guantánamo: Lakhdar Boumediene Speaks by Andy Worthington « Dandelion Salad says...

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  14. Free The Guantánamo Uighurs! by Andy Worthington « Dandelion Salad says...

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  15. Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights by Andy Worthington « Dandelion Salad says...

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  16. Guantánamo And The Courts Part One: Exposing The Bush Administration’s Lies by Andy Worthington « Dandelion Salad says...

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  17. “La ‘detención preventiva’ es una traición radical a nuestros valores más fundamentales” – P+DH [periodismo + derechos humanos] says...

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  18. Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think by Andy Worthington « Dandelion Salad says...

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  19. Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think « Dr Nasir Khan says...

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  20. As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat by Andy Worthington « Dandelion Salad says...

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  21. How Judge Huvelle Humiliated The Government In Guantánamo Case by Andy Worthington « Dandelion Salad says...

    [...] So now, somebody ought to face the music and figure out how you can make a case. How can you do it? Boumediene [the Supreme Court ruling granting the prisoners habeas rights] says you have to make a case. [...]

  22. Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker by Andy Worthington « Dandelion Salad says...

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  23. Guantánamo And The Courts (Part Two): Obama’s Shame by Andy Worthington « Dandelion Salad says...

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  24. Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo « freedetainees.org says...

    [...] ruled that the habeas rights granted by the Supreme Court to the Guantánamo prisoners last June in Boumediene v. Bush also extended to the foreign prisoners in Bagram, because, as he explained succinctly, ‘the [...]

  25. Arrogance And Torture: A History of Guantánamo by Andy Worthington « Dandelion Salad says...

    [...] only finally addressed in June 2008, when, in a third significant decision regarding Guantánamo (Boumediene v. Bush), the Supreme Court ruled that the prisoners had constitutional habeas corpus rights. Six and a [...]

  26. No Escape From Guantánamo: The Latest Habeas Rulings by Andy Worthington « Dandelion Salad says...

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  27. Is Bagram Obama’s New Secret Prison? by Andy Worthington « Dandelion Salad says...

    [...] which clung to the line taken by the Bush administration, Judge Bates ruled in April that Boumediene v. Bush — the Supreme Court ruling last June, which granted constitutionally guaranteed habeas corpus [...]

  28. On Guantánamo, Lawmakers Reveal They Are Still Dick Cheney’s Pawns by Andy Worthington « Dandelion Salad says...

    [...] June, the Supreme Court rose up again, this time granting the prisoners constitutionally guaranteed habeas corpus rights, and setting in motion a process of reviews that, to date, has led to District Court judges [...]

  29. Lawyer Blasts “Congressional Depravity” On Guantánamo by Andy Worthington « Dandelion Salad says...

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  31. New Book: The Guantánamo Lawyers – and a talk by Jonathan Hafetz by Andy Worthington « Dandelion Salad says...

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  32. Justice Department Pointlessly Gags Guantánamo Lawyer by Andy Worthington « Dandelion Salad says...

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  35. “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition « freedetainees.org says...

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  43. Update on Guantanamo Detainees’ Habeas Corpus Challenges - National Security Law Brief says...

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  45. Col. Morris Davis Criticizes Obama on Guantánamo by Andy Worthington « Dandelion Salad says...

    [...] responsible for the Supreme Court affording detainees the constitutional right of habeas corpus in the Boumediene decision [in June 2008]. We can’t afford to screw this up [...]

  46. Fahad Hashmi And Terrorist Hysteria In US Courts says...

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  47. The Black Hole of Bagram – Dark Politricks says...

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  55. Guantánamo And The Death Of Habeas Corpus - OpEd says...

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  57. Kidnapping Victims Released | Lew Rockwell says...

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  58. A Tired Obsession with Military Detention Plagues American Politics « Piazza della Carina says...

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  59. A Tired Obsession with Military Detention Plagues American Politics « Dandelion Salad says...

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  60. As Judges Kill Off Habeas Corpus For Guantánamo Prisoners, Will Supreme Court Act? says...

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  61. Meet the Seven Guantánamo Prisoners Whose Appeals Were Turned Down by the Supreme Court | Cii Broadcasting says...

    [...] successful petitions overturned on appeal. The ruling came the day before the 4th anniversary of Boumediene v. Bush, the 2008 case in which the Supreme Court granted the prisoners constitutionally guaranteed habeas [...]

  62. Meet the Seven Guantánamo Prisoners Whose Appeals Were Turned Down by the Supreme Court - World Observer Online says...

    [...] successful petitions overturned on appeal. The ruling came the day before the 4th anniversary of Boumediene v. Bush, the 2008 case in which the Supreme Court granted the prisoners constitutionally guaranteed habeas [...]

  63. freedetainees.org – Clive Stafford Smith’s Support For Independent Medical Evaluation For Shaker Aamer In Guantánamo says...

    […] of his habeas corpus petition, even though the Supreme Court recognized over five years ago, in Boumediene v. Bush, in June 2008, that the prisoners at Guantánamo have constitutionally guaranteed habeas corpus […]

  64. The Bagram Detainees – Pakistanis Out Of Place | SEASON OF THE FIERY ROSE:::::::: LAW AND JUSTICE IN PAKISTAN says...

    […] the Supreme Court granted habeas corpus rights to the Guantánamo prisoners in June 2004, and again in June 2008, after Congress had tried to remove these rights in the Detainee Treatment Act of 2005 and the […]

  65. Update on Guantanamo Detainees’ Habeas Corpus Challenges | National Security Law Brief says...

    […] an update on the effects of a U.S. Supreme Court 2008 ruling, which allowed Guantanamo detainees “the right to challenge their confinement,” federal […]

  66. Swiss Take Two Guantánamo Uighurs, Save Obama from Having to Do the Right Thing | Dandelion Salad says...

    […] to wait until October 2008, when Judge Ricardo Urbina, a US District Court judge, ruled on their long-delayed habeas corpus petitions, and ordered their release into the United States, because no other country had been found that […]

  67. Cleaning Up the Guantanamo Mess: Worthington Provides Some Valuable Details | The Rag Blog says...

    […] the Supreme Court and Congress to grant them their wish. Since the justices of the Supreme Court decisively ended this struggle last June, by ruling that Congress had acted unconstitutionally when it stripped the prisoners of […]

  68. The Black Hole of Guantánamo by Andy Worthington | Dandelion Salad says...

    […] June 2008, the Supreme Court added a second layer of review, of a more substantial nature, when it gave the prisoners constitutionally guaranteed habeas corpus rights; in other words, the right to challenge the basis of their detention in a US court. This right had […]

  69. Finding New Homes For 44 Cleared Guantánamo Prisoners by Andy Worthington | Dandelion Salad says...

    […] Courts, as a result of the habeas corpus petitions that were authorized by the Supreme Court in an extraordinarily important ruling in June 2008. 13 of these men are Uighurs — Muslims from China’s oppressed Xinjiang province, whose release […]

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Andy Worthington

Investigative journalist, author, filmmaker, photographer and Guantanamo expert
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The Guantánamo Files book cover

The Guantánamo Files

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The Battle of the Beanfield

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Stonehenge: Celebration & Subversion

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Outside the Law: Stories from Guantánamo

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