The Supreme Court decided today that the Suspension Clause of the Constitution applies to detainees at Guantanamo, and that it means what it says: the privilege of habeas corpus may be suspended only in cases of “rebellion or invasion.” Basically, the Court concluded as follows:
We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause…. This Court may not impose a de facto suspension by abstaining from these controversies…. The [Military Commissions Act] does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention….
We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. 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. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.
I haven’t had a chance to read the decision carefully yet. The best coverage, as always, is at SCOTUSblog (see also this post). The full opinion (5-4, written by Justice Kennedy with the usual suspects dissenting) is available here.
music to my ears, even if 4 of the 9 don’t agree.
This is so far outside my knowledge base, I wonder to make of this.
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p>It seems that the Supreme Court is saying that Bush and Congress violated Constitutional law and unlawfully detained thousands of people. To me, unlawful imprisonment of that many people for 5-ish years seems like a human rights violation.
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p>If Clinton’s crime was lying under oath, how is this not a crime of 100 times greater magnitude? Can this decision be something that can be used in implementing sanctions against Bush and other administration officials, on a national or world wide level, in years to come?
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p>On a pragmatic level, I don’t see much happening because of this. But on a thinking level, this seems like an impeachable offense. Seriously, we look like a third-world backwater when we impeach a guy for lying about a blow job but when the highest court in the land says our Constitution, which is a model for democracy across the globe, was violated and that violation was done for the political gain of the party in power and at the expense of human rights of often innocent victims, we shrug our shoulders.
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p>Is this ruling also evidence of a war crime? I don’t throw that word around as a polarizing anti-Bush invective, I just wonder if the people illegally detained in Gitmo, their home nations, and Human Rights advocacy groups now have solid footing to seek action against the United States and individuals in the government?
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p>What if China was holding hundreds of US citizens without habeas corpus? What’s the difference between a prisoner held for five years without habeas or an open trial different from a hostage?
Really. Not even close.
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p>Let me try to explain. The Court passed absolutely no judgment on the actual imprisonment itself. Their ruling, as is almost always the case, was about the constitutionality of a law. In this case, primarily the Military Commissions Act of 2006. In particular, they reviewed the provision of the law (yes, passed by our “Democratic” Congress) that eliminated the right of detainees to bring habeas challenges to their confinement. The majority ruled that this part of the law was unconstitutional.
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p>But this ruling had absolutely nothing at all to do with the original decisions to set-up a prison, detain certain individuals (without trial!) or about the treatment of the detainees. The ruling has nothing to do with “war crimes”, cruel and unusual punishment, the right to an “open trial” or anything approaching an impeachable offense. It only vaguely touches on human rights.
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p>All this being said, I join you in your outrage about the governments’ sad and outrageous decisions to flaunt the Constitution and well-established international law at Guantonimo Bay. But the Supreme Court ruling had virtually nothing to do with those feelings.
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p>We should celebrate that this ruling will almost certainly ensure that GITMO prisoner’s habeas challenges will no go forward, that they will have improved access to their American lawyers, and that transfers of prisoners to other faraway prisons will now be more carefully reviewed. We can even hope that some truly innocent “detainees” will win their freedom.
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p>To me, these are big enough victories to celebrate even though it certainly won’t result in the impeachment or conviction of the President.
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Like I said, I know nothing about this stuff. But I do realize that the SCOTUS didn’t make any judgement about war crimes or offered an opinion about impeachment.
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p>But I still can’t help but wonder if this ruling will eventually be synthesized into a larger formal action besides those which you outlined above. This ruling legitimizes and amplifies many domestic and foreign criticisms hurled at the US and the current administration about how the US has behaved since 9/11.
In your original post you wonder aloud whether the ruling now means that there exists “solid footing to seek action against the United States and individuals in the government.”
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p>The answer is clearly no. Outside of the remaining inidivudal cases (some 250+ men remain detained), there will be no further legal action. It is extremely unlikely that the quirky and largely ineffective international law system will ever get around to a real prosecution of Bush or anyone in U.S. government
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p>However, Human Rights Watch has already issued the following accurate and hopeful statement (excerpted):
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p>Sounds pretty darn good to me.
Congress was not Democratic in 2006, and only 32 Democratic Reps and 12 Democratic Senators voted for the MCA. It would have passed even if every Democrat voted against it.
One slim victory for the side that respects our laws. The Australians understand the full impact of what is happening and are investigating their prior PM for war crimes. With so much blood on the hands of both Republicans and Democrats I see little hope of any prosecutions in this country.
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p>My hope is that someday the true history of this stain on our freedoms and laws will be written that free people can understand what was lost at the beginning of the 21st century and insure that it never happens again.
My take would be that up until now POTUS could argue that he was following in good faith the advice of his Justice Department, even if that defense would make a lot of us cringe, regarding constitutionality. Now that the Court has spoken I would say any deliberate defiance a la Jackson’s, “Marshall has made his decision; now let him enforce it.” would be grounds for impeachment as now we know for sure it is unconstitutional. I’m being a bit of a devil’s advocate because I believe there are a lot of things that are potentially impeachable already and I realize that Gerald Ford was correct to say in practice that an impeachable offence is whatever Congress says it is.
I’m sure it won’t happen but it would be refreshing if any future misdeeds from the detainees in question would be imposed on supporters of this truly upsetting and slim 5-4 ruling. I am still hopeful that some mechanism can be set up to provide Habeas rights for these criminals while still protecting the public from their evil goals and keeping them behind bars where they can’t hurt anyone else. Otherwise, it will give many bloggers on this site something to talk about if something bad does happen… “How could the Bush administration release these obviously dangerous people from detention… blah blah blah”
I’m sorry you find applying the Constitution to be upsetting. The detainees can certainly be held without bail like many criminal defendants. In our value system it is better for 100 guilty men to go free than for even one to be unjustly held. If these people really are “obviously dangerous” as you put it then there is no harm in proving that in a “speedy and public trial”.
is impeachment. The Supreme Court cannot enforce laws, it can only interpret their constitutionality. So, if it makes a ruling as it did with regards to Guantanamo and the executive chooses to ignore it, the only remedy afforded us by the Constitution would be impeachment and removal from office.