n a major rebuke to the Bush administration's theories of presidential power -- and in an equally stinging rebuke to the bipartisan political class which has supported the Bush detention policies -- the U.S. Supreme Court today, in a 5-4 decision, declared Section 7 of the Military Commissions Act of 2006 unconstitutional. The Court struck down that section of the MCA because it purported to abolish the writ of habeas corpus -- the means by which a detainee challenges his detention in a court -- despite the fact that Constitution permits suspension of that writ only "in Cases of Rebellion or Invasion."
As a result, Guantanamo detainees accused of being "enemy combatants" have the right to challenge the validity of their detention in a full-fledged U.S. federal court proceeding. The ruling today is the first time in U.S. history that the Court has ruled that detainees held by the U.S. Government in a place where the U.S. does not exercise formal sovereignty (Cuba technically is sovereign over Guantanamo) are nonetheless entitled to the Constitutional guarantee of habeas corpus whenever they are held in a place where the U.S. exercises effective control.
In upholding the right of habeas corpus for Guantanamo detainees, the Court found that the "Combatant Status Review Tribunals" process ("CSRT") offered to Guantanamo detainees -- mandated by the John-McCain-sponsored Detainee Treatment Act of 2005 -- does not constitute a constitutionally adequate substitute for habeas corpus.
Chief Justice John Roberts, in dissent: ``Today the court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation. And to what effect? The majority merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date.''
``The critical threshold question in these cases, prior to any inquiry about the writ's scope, is whether the system the political branches designed protects whatever rights the detainees may possess. If so, there is no need for any additional process, whether called 'habeas' or something else.''
Justice Antonin Scalia, in dissent: ``The game of bait-and-switch that today's opinion plays upon the nation's commander in chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional republic. But it is this court's blatant abandonment of such a principle that produces the decision today.''
``Today the court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause. ... It blatantly misdescribes important precedents ... It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad ... And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The nation will live to regret what the court has done today.''
Justice Anthony Kennedy, writing to grant court access to detainees: ``Because our nation's past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the court might not have this luxury.''
``The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.''
``In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. ... While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.''
Justice David Souter, in support of the majority wrote: ``A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years ... Hence the hollow ring when the dissenters suggest that the court is somehow precipitating the judiciary into reviewing claims that the military, subject to appeal to the Court of Appeals for the District of Columbia Circuit, could handle within some reasonable period of time.''
In a separate decision, the court ruled 9-0 that United States citizens detained by US forces have the right to challenge their detention, no matter where they are being held. In the consolidated cases of Geren v. Omar and Munaf v. Geren, the Court held that American citizens held by the United States Army outside of the United States have a right to challenge their detentions in federal court. The United States government had contended that, since the United States soldiers holding Omar and Munaf were operating under the auspices of a multi-national coalition, they were not entitled to habeas corpus in US courts.
Three of the five Justices in the majority -- John Paul Stevens (age 88), Ruth Bader Ginsburg (age 75) and David Souter (age 68) -- are widely expected by court observers to retire or otherwise leave the Court in the first term of the next President. By contrast, the four judges who dissented -- Antonin Scalia, Clarence Thomas, John Roberts and Sam Alito -- are expected to stay right where they are for many years to come.
Republican John McCain said that he continues to support closing the detention facility, but is concerned about a ruling that gives habeas corpus rights to enemy combatants who are not US citizens.
Democrat Barack Obama, who also wants to close Guantanamo, said "This is an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy."
What the rulings mean to Guantanamo captives.