June 12, 2008 -- In a stinging defeat for the Bush administration, the Supreme Court ruled today that detainees held at Guantanamo Bay, Cuba, have a constitutional right to challenge their detentions in federal court and that congressional legislation has failed to provide a reasonable substitute for such a hearing.
The ruling invalidates portions of the Military Commissions Act of 2006, which created military tribunals to hear the cases of those held at Guantanamo.
The decision was 5-4, with Justice Anthony Kennedy joining the four liberal justices on the court.
Writing for the majority opinion striking down the Military Commissions Act, Kennedy wrote, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."
President Bush reacted to the decision today at a joint press conference in Rome with Prime Minister Sivlio Berlusconi.
"It's a Supreme Court decision," Bush said. "We will abide by the decision. That doesn't mean I have to agree with it. It was a deeply divided court. I strongly agree with those who dissented."
The Justice Department, too, responded Thursday with a statement from deputy director of public affairs Peter A. Carr.
"We are disappointed with the Court's decision," the statement said. "The Court recognized that an adjustment to typical habeas proceedings may be appropriate, but required the hundreds of actions challenging the detention of enemy combatants at Guantanamo to be moved to district court. The Department is reviewing the decision and its implications on the existing detainee litigation."
The stakes are enormous. The justices have thrown open the courthouse doors for the 270 detainees currently being held at Gitmo who will now argue that they should be allowed to be present in court with access to most of the evidence against them. It will also affect the cases of some detainees who have been charged with war crimes.
Kennedy wrote: "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."
Conservative Justice Antonin Scalia wrote a blistering dissent and suggested that today's decision will damage national security. Scalia wrote "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."
Scalia also made note that some former detainees released from Guantanamo have returned to the battlefield. "Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection."
Chief Justice John Roberts also vehemently disagreed with the majority opinion. "So who has won?" he wrote. "Not the detainees. The court's analysis leaves them with only the prospect of further litigation." Roberts went on to write, "and certainly not the American people, who today lose a bit more control over the conduct of this nation's foreign policy to unelected, politically unaccountable judges."
Presumptive Republican nominee John McCain also reacted to today's decision, saying that although he had not yet had a chance to read it, it concerned him.
"These are unlawful combatants. They are not American citizens, and I think we should pay attention to Justice Roberts' opinion in this decision," McCain said. "But it is a decision that the Supreme Court has made; now we need to move forward. As you know, I always favored closing Guantanamo Bay and I still think we ought to do that."
"The Court's decision today will deepen and complicate an already ridiculously complex and disordered morass of litigation brought by foreign terrorists against our government," said Bradford Berenson, former associate counsel to President Bush from 2001 to 2003. "The decision will magnify the already heavy litigation burdens on our government and, because it is limited to detainees held at Guantanamo, may increase the pressure on the government to close that facility. The available alternatives -- bringing al Qaeda leaders such as Khalid Sheikh Mohammed to the continental United States or sending them back to detention facilities closer to war zones -- are less desirable and less safe for everyone. Such are the perverse and unintended consequences when the courts fail to afford appropriate deference to the political branches in sensitive national security matters."
At the American Civil Liberties Union, legal director, Steven R. Shapiro, said, "Today's decision forcefully repudiates the essential lawlessness of the Bush administration's failed Guantanamo policy. It should also mark the beginning of the end of the military commission process, which permits the use of coerced evidence and hearsay and thus cannot survive the constitutional scrutiny that today's decision demands. It is time to close Guantanamo, end indefinite detention without charge and restore the rule of law."
The case is one of the most significant wartime cases in a half century. It was filed on behalf of Lakmar Boumediene and other detainees who the United States is currently holding at the Guantanamo Bay naval base. Oral arguments came replete with references to wartime legal issues dating back centuries as attorneys sparred with justices over the rights of the 270 foreign nationals currently held at Guantanamo who were captured both on and off the battlefield in an unconventional war.
Lawyers for the detainees argued that the men have a right to challenge their detention in federal courts. They claimed that the Military Commissions Act, which Congress passed in 2006 to create a special legal system for detainees, denied them the right to fair and impartial hearings, proper legal representation and the ability to hear all the evidence against them.
The Bush administration had argued that the legislation struck the right balance between detainees' rights and the need to ensure that the detainees did not return to the battlefield to continue to fight against the United States.
Solicitor General Paul Clement, arguing for the Bush administration, said, "It really does represent the best efforts to prosecute the global war on terror."
In the months after the Sept. 11 attacks, the administration decided quickly to send detainees to Guantanamo, believing that if the detainees were held off U.S. soil they would not get access to U.S. courts.
Congress mandated that detainees receive hearings called Combatant Status Review Tribunals to determine whether they should be released or named as enemy combatants. Of the some 800 people sent to Guantanamo, roughly 270 remain.
Human rights groups around the world have criticized Guantanamo, and Attorney General Michael Mukasey said in his confirmation hearings that the detention center has given the United States a "black eye." But military lawyers said they are proud of the current system and believe it provides a fair system for review.
Before today's decision, Brigadier Gen. Cameron A. Crawford, the deputy commander of Joint Task Force Guantanamo, told ABC News, "I believe that 40, 50 years from now when our children and grandchildren are studying Guantanamo, I believe that history will have judged that we did the right thing at the right time, in the face of overwhelming criticism both domestically and most certainly on an international basis."
Military lawyers said the system at Guantanamo is necessary because the federal court system in America is simply not well suited to handle the legal issues that arise in a war with an enemy like al Qaeda.
Capt. Pat McCarthy, the U.S. government's lead counsel at Guantanamo, described scenarios of capture that have complicated the government's attempt to gather evidence.
"We had to grab as much stuff as we could grab in the house and get out the door with it before the house was inundated with cohorts of the individual that we are taking custody over," he said.
Any chance to gather evidence was rushed, McCarthy said. "So what you have is large green trash bags full of computers, full of weapons, full of letters, you have all of that sort of thing."
He said that such evidence would never be accepted in a federal court. "I can assure you that if you attempt to take that sort of evidence into federal district court you will not be able to convict, period."
But others disagree.
Michael Greenberger, law professor at the University of Maryland School of Law, said the U.S. courts would be able to handle the detainees. Greenberger said. "That is not an unusual situation. During World War II both enemy combatants and prisoners of war were held in the United States."
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