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5 of 9 Justices Support Basic Civil Rights for Detainees

June 12th, 2008
By DAMOZEL

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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



This entry was posted on Thursday, June 12th, 2008 at 9:49 am and is filed under Bush Administration, Guantanamo Bay, George W. Bush, War On Terror, 2008 Elections. You can leave a response, or trackback from your own site.

Viewing 6 Comments

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    • v
    I can say, without hyperbole, that the military commissions act made me more sad/angry/scared on a core level than anything else in my life. Aside from the striking of habeas corpus and the inconsistent definition of "unlawful combatant" that made it so legal professors were unclear on who it could be applied to, was the fact that Congress had codified abject fear into Law. To me it was a possible tipping point that would lead to a flood of other laws that thankfully have not come to pass, but perhaps only because of the bumbling of the White House and sheer luck.

    I fully agree with Cernig that it not only hurt the potentially innocent, but makes us less safe by making it harder to prosecute people in a way that the rest of the world would respect; even prosecutors started quitting the tribunals and claiming they were kangaroo courts.

    I wouldn't say it's a rebuke to the Administration as that makes it sound topical and political, I'd say it's a reaffirmation of our basic ideals. To say that I'm hugely relieved is an understatement.
    • ^
    • v
    I wouldn't say it's a rebuke to the Administration as that makes it sound topical and political, I'd say it's a reaffirmation of our basic ideals.

    It's a rebuke in so much that the Bush Administration has sought to subvert our basic ideals.
    • ^
    • v
    "They have proven themselves incompetent to shepherd America’s national security."

    Yes they have.

    "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."

    Perhaps someday that quote will ring loudly as Bush and company are extradited to stand trial in Baghdad by Prime Minister Mahdi or Sadr. Small wonder that the administration is pulling out all the stops to get an agreement that continues immunity for us and our contractors.
    • ^
    • v
    All I can say is A-M-E-N for the Supreme Court. At least one of the other branches is doing its job to remind us what this country is about. No doubt forcing the president to live up to our traditions and laws of freedom and decency to prisoners will be viewed as more "Judicial Activism".
    • ^
    • v
    Point one, yay for habeus corpus.

    Point two, why don't we simply classify (at least some of) these people as POWs, give them their rights under the Geneva Conventions and then keep them safely off the playing field until the end of this war?

    I realize that may be a long time, but at least the Red Cross could see to it they're humanely treated, and we'd be following our own, and international law without releasing potential terrorists.

    I'm sure my reasoning must be flawed (else why haven't we done this?) but could someone please explain how?
    • ^
    • v
    Citizen, they don't want to classify them as POWs because we are not treating them in accord with Geneva convention, hence the new designation "enemy combatant"
 
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