The U.S. Supreme Court, by a 5-to-4 vote, has pulled our nation back from a dangerous precipice. In affirming that prisoners at Guantanamo have the right to challenge the legality of their imprisonment in a court of law, the high court has salvaged habeas corpus, a vital principle of liberty and check on the elected branches of government. The ruling is a direct rebuke to President Bush and the expansive executive powers he claimed.
In Boumediene vs. Bush the high court nullified the Bush administration's strategy of purposely setting up a detention camp at Guantanamo Bay, Cuba, in order to block access by its prisoners to U.S. civilian courts. The administration had relied on prior Supreme Court rulings suggesting that foreign nationals held off American soil did not enjoy the protections of the Constitution. But the court — now for the third time — refused to sanction the lack of due process afforded the hundreds of detainees held at Guantanamo, some for more than six years.
With Justice Anthony Kennedy writing for the majority, the court held that Guantanamo detainees retained the right to habeas corpus despite Cuba's formal sovereignty over the territory because Guantanamo Bay was under the effective control of the United States. This analysis of Guantanamo's status as an American outpost is similar to what the court said in a 2004 case.
Kennedy grounded the ruling on the importance of habeas corpus to the country's founders as one of the few rights they included in the body of the Constitution. Kennedy offered this from the Federalist No. 84 by Alexander Hamilton: "The practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny."
In striking down the part of the Military Commissions Act of 2006 that stripped the federal courts of jurisdiction to hear habeas petitions from terror suspects, the court said that Congress may only suspend the writ of habeas corpus in cases of "rebellion or invasion," circumstances not present in this case.
As a key part of the ruling, the court had to determine whether Congress, in passing the Detainee Treatment Act of 2005, provided an adequate substitute for habeas corpus in setting up what are known as "combatant status review tribunals." Under the CSRT process, detainees are brought before a military tribunal for a determination on whether they are enemy combatants and being properly held.
But as the high court recognized, the CSRT proceedings are very different from the due process under habeas corpus. Under the CSRTs, detainees are not given lawyers, don't necessarily get to see the evidence against them and can be blocked from bringing forward their own evidence. There is an appeals process to a civilian federal court of appeals, but it is so constrained that it is not a meaningful review.
It was disappointing to see that the court's four conservative members, including its two newest members, Chief Justice John Roberts and Justice Samuel Alito, joined in dissent. The high court, as our only nonpolitical branch, is counted on to act as a bulwark against incursions of liberty during times when fear grips the country.
Kennedy wrote that "the laws and Constitution are designed to survive, and remain in force, in extraordinary times." He said that beyond relying on our armies and intelligence apparatus, "(s)ecurity subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint."
This is a historic decision, the importance of which is sure to stand the test of time.