Habeas corpus–not dead yet.
Today the Supreme Court ruled 5-4 that foreign terrorist suspects imprisoned at Gitmo have the right to challenge their detention in U.S. courts. The NY Times reports:
In a harsh rebuke of the Bush administration, the justices rejected the administration’s argument that the individual protections provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were more than adequate.
“The costs of delay can no longer be borne by those who are held in custody,” Justice Kennedy wrote, assuming the pivotal role that some court-watchers had foreseen.
(…)
The issues that were weighed in Thursday’s ruling went to the very heart of the separation-of-powers foundation of the United States Constitution. “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,’ ” Justice Kennedy wrote, citing language in the 1803 ruling in Marbury v. Madison, in which the Supreme Court articulated its power to review acts of Congress.
Joining Justice Kennedy’s opinion were Justices John Paul Stevens, Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. Writing separately, Justice Souter said the dissenters did not sufficiently appreciate “the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years.”
The dissenters were Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas, generally considered the conservative wing on the high court.
Reflecting how the case divided the court not only on legal but, perhaps, emotional lines, Justice Scalia said that the United States was “at war with radical Islamists,” and that the ruling “will almost certainly cause more Americans to get killed.”
Bit much, that. For more analysis, check out Marty Lederman’s posts at Balkinization:
But as far as I can tell just yet, the Court did not reach the two even more important questions:
1. Whether the Constitution applies to detainees held outside GTMO; and
2. What the substantive standard for detention is: “It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined.”
At first glance, it would appear that although the decision is momentous, there are other important things that it does not do:
It does not speak to whether GTMO should be closed (although it basically undermines the Administration’s principal reason for using GTMO in the first place, which was to keep the courts from reviewing the legality of the Executive’s conduct).
Nor does it affect, in any dramatic sense, possible military commission trials — with the important exception that it invites the defendants in those trials to raise constitutional defenses, such as under the Ex Post Facto Clause.
Refreshing to see that the law rules over Chaney-Bush. Would these Justice Catholics have opposed the French Revolution? Will Chaney conform?
Everyone knows that what’s at stake in Supreme Court appointments is abortion. What not everyone focuses on, however, is that what’s also at stake is the nature of our three-branch theory of government.
How far do we want an executive branch to be able to operate without review from the judicial branch? Do we want an executive branch that is far less accountable, at least in matters of national security?
Bush has declared that he doesn’t agree with the 5-4 decision.
“U.S. President George Bush says he disagrees with a Supreme Court ruling that prisoners at the Guantanamo Bay detention facility have the right to challenge their detention before civilian judges. VOA’s Paula Wolfson reports Mr. Bush spoke out on the high court ruling while in Rome for talks with Italian Prime Minister Silvio Berlusconi.
“While the president was meeting with Italian leaders, the U.S. Supreme Court handed down its latest ruling on Guantanamo.
“The president said he disagrees. ‘We will abide by the court’s decision. That doesn’t mean I have to agree with it.’”
But as Juan Cole points out it was 5-4 that gave him the presidency.
http://www.juancole.com/
The 5-4 decision means that this is hardly a clear-cut case, that reasonable people can disagree … it does not mean that Bush’s actions were truly and unquestionably wrong–merely that the vestiges of the older court remain (and that if Reagan had appointed someone other than Anthony Kennedy, the decision could have been 5-4 in the president’s favor) … Moreover, did anyone ever really expect the supreme court to say: No, sorry–we don’t think we should have a say in this or that matter?
It is also hardly surprising because conservatives have felt for the past 40+ years that the courts have been too lenient on America’s homegrown criminals; this is no different. It is a good day for the terrorists and a bad day for America. I pray that Scalia is an alarmist; I suspect he is just premature.
The NPR report this morning(of course by Nina Totenberg) underscored some of the practical problems and matters yet to be settled by the decision.
Still, I think Cathy’s comment is on target. While Roberts may have fel that the Court “overreached,” he seems to have missed that the Executive overreached in its handling of the matter.
The justices’ voting conferences must be very interesting. On the most politically-charged and divisive cases, both wings of the court (Stevens, Souter, Ginsburg, and Breyer on one side, and Scalia, Thomas, Roberts, and Alito on the other) must be on tenterhooks waiting to hear which way Justice Anthony Kennedy will vote. He seems clearly to have assumed the tiebreaker role Justice O’Connor used to have, and he’s arguably more powerful than the Chief Justice in some respects.
With respect to Cathy’s point (and, perhaps, Bob’s) about separation-of-powers and judicial review of executive branch action, it seems worth noting that the Court’s decision invalidates portions of two acts of Congress, not merely actions of the Executive Branch. This is not a case, in other words, presenting the question whether, and to what extent, the Court should assume or exercise the power to review the President’s own foreign-policy or national-security initiatives or actions. (It could be, of course, that both Congress *and* the President over-reached. But, this is as much a case about the reach of judicial power as it is a case about executive power.)
I have only recently found the time to read the decision and the Roberts dissent. There is one part that stuck out to me. Roberts writes that,
“The political branches created a two-part, collateralreview procedure for testing the legality of the prisoners’ detention: It begins with a hearing before a Combatant Status Review Tribunal (CSRT) followed by review in the D. C. Circuit. As part of that review, Congress authorized the D. C. Circuit to decide whether the CSRT proceedings are consistent with “the Constitution and laws of the United States.” No petitioner, however, has invoked the D. C. Circuit review the statute specifies. As a consequence, that court has had no occasion to decide whether the CSRT hearings, followed by review in the Court of Appeals, vindicate whatever constitutional and statutory rights petitioners may possess.”
Isn’t it odd that none of the petitioners would have used the ready-made system for judging the constitutionality of the hearings? Any legal experts here?
Rick’s right, about the fact that the particular case –although this case seems to me to involve questions of what counts as core judicial functions –review of detention by an independent judiciary–rather than cases we normally consider “judicial overreaching.” More specifically, I at least, consider the power of an independent judiciary to review conditions of detention imposed by the other two branches of government to be a quintessentially judicial power–and in no way any kind overreaching.
I still think my way of framing what’s at stake in the election holds overall. Abortion isn’t the only issue at stake in the constitutional framework of this election. What kind of judiciary do we want? What kind of deference do we want it to offer to the executive branch–or to the legislature? Is our big problem tyranny of the judiciary or another kind of tyranny?
I’ve only glanced at the opinion, so I’d need to read it more carefully before commenting more extensively on it in particular, rather than the general framework of what’s at stake in the election. Roberts’s dissent, in particular, needs more consideration.
More broadly, Do we want presidents and legislators to say, “Hey, I’ve read the Constitution too, and this is my interpretation”–not just as a speculative matter, but as a matter of forming the basis of action.” Should the Court (SCT) be the final interpreter of the Constitution? In what respects?
What are we to make of the position of the four dissenting justices, all practicing Catholics, that the Constitution condones (or does not cover) these human rights abuses, in the name of pre-crime policies? And what are we to make of the ineffective role of Catholic teaching authority at any level in guiding the United States church toward a categorical rejection of such practices? It appears that all of us, teachers and rank and file, stand in line inside the magisterial cafeteria, waiting for the Holy Spirit to scream to us something that our own hardened conscience can no longer understand. It also appears that many of my fellow citizens in places of civil authority are far more “affluent American” than they are “poor in spirit Catholic.”