5 of 9 Justices Support Basic Civil Rights for Detainees

Lynn Denniston at SCOTUSblog calls it ‘a stunning blow to the Bush Administration in its war-on-terrorism policies.’   

Shaun Mullen sums up the disposition and the background of Boumediene v. Bush here. The New York Times reports:

In its third rebuke of the Bush administration’s treatment of prisoners, the court ruled 5-4 that the government is violating the rights of prisoners being held indefinitely and without charges at the U.S. naval base in Cuba. The court’s liberal justices were in the majority.

Justice Anthony Kennedy, writing for the court, said, ”The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” (NYT)

It’s a step in the right direction for those of us who believe that the US has an obligation to set an example in humane treatment even of enemy combatants.

Thank the majority for this:

The Court…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. (SCOTUSblog)

Dissenters were the usual suspects:  Chief Justice Roberts, Clarence Thomas, Samuel Alito, and the ever popular Antonin Scalia.  Roberts, dissenting, said in effect that the procedural protections of the Detainee Treatment Act were plenty generous enough for aliens detained as enemy combatants! 

If I’m not as joyful as I’d have expected, it’s because I’m so bothered by the 5-4 split. Anyone who can’t decide whether they hate the thought of an Obama presidency more than a McCain presidency needs to think long and hard about the implications of this 5-4 split.  Federal judicial protection of individual rights, and individual privacy — and not only those of enemy combatants — are already hanging by a thread.  Those who are attempting to convince themselves that it doesn’t make any difference which party the President is accountable to, and dependent upon, need to review the Constitution and take a long hard look at the Supreme Court and the first six years of Bush’s reign. 

And there are other concerns. At Newshoggers, Cernig notes:

Some very bad people are likely to walk free along with the innocent because the Bush administration tried to walk around domestic and international principles of law, creating an entirely spurious new designation of “unlawful combatant” so that they could either hise detainees from due process indefinitely or, failing that, conduct kangaroo courts.

If they’d just stuck with the existing definitions, all the Gitmo detainees against whom they could build a real case under the actual rules of law, without torture and without rigging the courts, would have been tried as POW’s already. If found guilty, the death penalty would have been warranted in some cases…. That it hasn’t happened is a failure of the Bush administration, no-one else. They have proven themselves incompetent to shepherd America’s national security.

Anyway, there’s more:

In a second ruling on habeas, the Court decided unanimously that U.S. citizens held by U.S. military forces in Iraq have a right to file habeas cases, because it does extend to them, but it went on to rule that federal judges do not have any authority to bar the transfer of those individuals to Iraqi authorites to face prosecution or
punishment for crimes committed in that country in violation of Iraqi laws. (SCOTUSblog)

CROSS-POSTED AT BUCK NAKED POLITICS