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.”
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.