Yesterday, for the third time in as many years, the Supreme Court has struck down a key provision of the Bush Administration’s policy toward terror suspects apprehended in the War on Terror:
WASHINGTON — The Supreme Court on Thursday delivered its third consecutive rebuff to the Bush administration’s handling of the detainees at Guantánamo Bay, ruling 5 to 4 that the prisoners there have a constitutional right to go to federal court to challenge their continued detention.
The court declared unconstitutional a provision of the Military Commissions Act of 2006 that, at the administration’s behest, stripped the federal courts of jurisdiction to hear habeas corpus petitions from the detainees seeking to challenge their designation as enemy combatants.
Writing for the majority, Justice Anthony M. Kennedy said the truncated review procedure provided by a previous law, the Detainee Treatment Act of 2005, “falls short of being a constitutionally adequate substitute” because it failed to offer “the fundamental procedural protections of habeas corpus.”
Justice Kennedy declared: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
The decision, left some important questions unanswered. These include “the extent of the showing required of the government” at a habeas corpus hearing in order to justify a prisoner’s continued detention, as Justice Kennedy put it, as well as the handling of classified evidence and the degree of due process to which the detainees are entitled.
Months or years of continued litigation may lie ahead, unless the Bush administration, or the administration that follows it, reverses course and closes the prison at Guantánamo Bay, which now holds 270 detainees. Chief Judge Royce C. Lamberth of the Federal District Court here said the court’s judges would meet in the next few days with lawyers for both sides to decide “how we can approach our task most effectively and efficiently.”
There are some 200 habeas corpus petitions awaiting action in the District Court, including those filed by the 37 detainees whose appeals were before the Supreme Court in the case decided on Thursday, Boumediene v. Bush, No. 06-1195.
Despite the open questions, the decision, which was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, was categorical in its rejection of the administration’s basic arguments. Indeed, the court repudiated the fundamental legal basis for the administration’s strategy, adopted in the immediate aftermath of the attacks of Sept. 11, 2001, of housing prisoners captured in Afghanistan and elsewhere at the United States naval base in Cuba, where Justice Department lawyers advised the White House that domestic law would never reach.
In a concurring opinion on Thursday, Justice Souter said the ruling was “no bolt out of the blue,” but rather should have been anticipated by anyone who read the court’s decision in Rasul v. Bush in 2004. That decision, part of the initial round of Supreme Court review of the administration’s Guantánamo policies, held that because the long-term lease with Cuba gave the United States unilateral control over the property, the base came within the statutory jurisdiction of the federal courts to hear habeas corpus petitions.
As the Washington Post notes, this ruling is likely to create even more confusion over an anti-terror policy that has been in disarry for years:
More than six years after the administration began flying suspected al-Qaeda and Taliban members to Cuba, confusion and uncertainty now cloud the operations at Guantanamo Bay: Only one detainee has received a verdict, hundreds have had no opportunity to challenge their detention and the government is facing a flood of new litigation invited by the court.
Even administration officials are uncertain about their next steps, and their surrogates were bitterly blaming the Supreme Court for seizing policy that they say the White House and Congress should set. They noted that the White House had done as the court previously demanded, working with Congress to put lawmakers’ imprimatur on detainee policy.
“It leaves the government and the next administration with a serious problem,” said Bradford A. Berenson, a former Bush White House lawyer. “Every detainee now at Guantanamo, and maybe detainees held elsewhere, are now going to come into court and demand a trial-type proceeding where they can force our military to justify their detentions under standards normally applicable only under the routine civilian context. This is undoubtedly going to produce an avalanche of burdensome litigation and, more seriously, erroneous releases of very dangerous people.”
Conservatives, and the Bush Administration will, no doubt, blame the Court for what they claim is an overreaching decision, but I think it’s far more complicated than that rather simplistic analysis makes it out to be, and it all comes down to the fact that neither the President nor Congress have taken the time to come up with a clear policy toward these people. Are they soldiers in a war ? Well, the problem with that analysis is twofold; first, they aren’t part of any recognized army and second, we really aren’t in a war because Congress has never declared one (this, incidentally, is why comparisons between the prisoners at Gitmo and German, Italian or Japanese agents or soldiers captured during World War II doesn’t quite work out).
More importantly, though, there is a perfectly Constitutional method by which the Congress could completely overrule the Court’s decision today, as The Volokh Conspiracy’s Orin Kerr notes:
In today’s debates on Boumediene v. Bush, I think it’s worth noting that there’s a way in which Congress could still go back to the pre-Rasul or pre-Boumediene state of the law: Congress could formally suspend the Writ as it applies to Guantanamo Bay. The Suspension Clause does not require the writ of habeas corpus; rather, it states that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” (emphasis added)
The Suspension Clause to which Kerr refers is set forth in Article I, Section 9 of the Constitution:
The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
It wouldn’t be an easy choice to make. The Writ of Habeas Corpus is among the oldest rights created under English Common Law, and one of the earliest limits placed on the power of a then-authoritarian state. It’s suspension during the Civil War was a constant source of political conflict and I’m sure the same debate would occur now, but, as Timothy Sandefur notes, the Constitution doesn’t always give legislators the option of making easy choices:
Congress has created a great deal of conceptual confusion and internal strife that is unnecessary and counterproductive. In the end, it’s really best to just face up to decisions squarely, rather than trying to find ways of accomplishing the end in a plausibly deniable disguise. For one thing, it makes it easier to undo that act when the time is right. By not using the word “war” in the AUMF, it is now harder for anyone to declare a conclusion to hostilities when (and if) we prevail. If Congress expressly suspended the writ, it would be relatively easy to restore it when the emergency is passed. As it is, we now have a complicated, high-stakes, extremely frustrating and distracting game of bouncing back and forth between Congress and the Courts, with each side accusing the other of malfeasance and bad faith, when we ought to be resolving to accomplish the ends before us.
Constitutionally, I think the Court’s decision was correct. Congress and the Bush Administration attempted to accomplish through intentionally vague legislation something that they didn’t want to do explicitly.
Now, the ball is in their court.
