Habeas Corpus for Detainees Upheld by US Supreme Court

Despite Chief Justice Roberts and fellow justices Scalia, Thomas, and Alito dissent, the US Supreme Court upheld habeas corpus for captives held in Guantanamo. Glenn Greenwald in Salon says:

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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.''

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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.

The Supreme Court to Hear Important Civil Liberty Cases

From Amnesty International

The Supreme Court will hear Bush administration lawyers attempt to defend the indefensible: that the President can hold people indefinitely, without charge and without question. With fundamental human rights principles on the line let's hope the Supreme Court rejects this lawlessness and demands an end to the injustice that flows from it.

A thousand miles from the Supreme Court steps, Amnesty International will be observing another crucial hearing today. This one will take place at Guantánamo Bay and while it will get less press attention, it is no less important.

While the Supreme Court considers whether or not Congress improperly took away the writ of habeas corpus from detainees in Guantánamo, a hearing will be convened to determine whether or not Salim Ahmed Hamdan is an "unlawful enemy combatant" and subject to trial by military commission. Under the Military Commissions Act, "unlawful enemy combatants" cannot challenge the evidence brought before them or object to being convicted on evidence obtained through brutal means.

The two hearings are not unrelated.

Both challenge the administration's attacks on our system of justice. Both challenge the assertion that fear, not freedom, guides our country. But even more important, both hearings present a clear opportunity to move our nation back on track -- to a place of respect for truth, justice and liberty. As four Supreme Court Justices put it, "[I]if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."

The US Supreme Court will hear oral arguments in relation to the Guantánamo detentions on whether the Military Commissions Act of 2006 has unlawfully stripped the US courts of jurisdiction to consider habeas corpus petitions from alien "enemy combatants" held in US custody.

Habeas corpus is a fundamental procedure guaranteed under international law under which detainees can challenge the lawfulness and conditions of their detention in an independent and impartial court. It also promotes state accountability by providing an independent judicial check on executive or legislative abuse.

This is a crucial moment for human rights and the rule of law. Indeed, the questions pending before the Supreme Court go beyond the rights of detainees through to the very concepts of accountable government.

With the US courts effectively removed from their role as an independent check on executive action, the past six years have seen a litany of abuse -- from secret detainee transfers, arbitrary detentions, cruel treatment and unfair trial procedures, through to the international crimes of torture and enforced disappearance. Guantánamo has been a core part of this unlawful detention regime.

Habeas corpus is not a technical nicety; it is a basic safeguard against government abuse. Restoring this safeguard in full and for all detainees is long overdue.

The administration chose Guantánamo Bay as a location to hold detainees in the "war on terror" because it believed that under existing US jurisprudence the courts should not be able to consider habeas corpus petitions filed on behalf of foreign nationals captured abroad and held on territory that was ultimately part of Cuba.

Six years on, and now aided by the Military Commissions Act, this unlawful executive detention regime remains essentially intact.The 'rights-free' zone that the USA has attempted to create in Guantánamo cries out for full and effective judicial scrutiny and the restoration of due process. Anything less will not meet the USA's international legal obligations.

This will be the third time that the US Supreme Court has considered aspects of the Guantánamo regime, and follows Rasul v. Bush in 2004 and Hamdan v. Rumsfeld in 2006. Although these rulings went against the government in a number of ways, the administration has interpreted the decisions in ways that further its objective of avoiding or delaying judicial scrutiny and violate the internationally recognized rights of the detainees.

The Court is expected to rule on the Boumediene v. Bush case in the first half of 2008, by which time the Guantánamo detentions would be well into their seventh year.

Help Tear Gitmo down.

The FISA-bility of Debate Moderators

Media Matters offers this asssessment

Through 17 debates this year, roughly 1,500 questions have been asked of the two parties' presidential candidates. But only a small handful of questions have touched on the candidates' views on executive power, the Constitution, torture, wiretapping, or other civil liberties concerns. (A description of those questions appears at the end of this column.)

Only one question about wiretapping. Not a single question about FISA.

There has, however, been a question about whether the Constitution should be changed to allow Arnold Schwarzenegger to be president.

Not one question about renditions. The words "habeas corpus" have not once been spoken by a debate moderator. Candidates have not been asked about telecom liability.

But there was this illuminating question, asked of a group of Republicans running for president: "Seriously, would it be good for America to have Bill Clinton back living in the White House?"

Though Republicans often claim that the Bush administration's warrantless wiretapping of Americans is necessary to prevent "another 9-11," debate moderators have not once asked candidates about recent revelations that suggest the administration began its surveillance efforts long before the September 11, 2001, attacks, not in response to them.

But NBC's Brian Williams did ask the Democratic candidates what they would "go as" for Halloween.

No moderator has asked a single question of a single candidate about whether the president should be able to order the indefinite detention of an American citizen, without charging the prisoner with any crime.

But Tim Russert did ask Congressman Dennis Kucinich -- in what he felt compelled to insist was "a serious question" -- whether he has seen a UFO.

No moderator has asked a single question about whether the candidates agree with the Bush administration's rather skeptical view of congressional oversight.

But Hillary Clinton was asked, "Do you prefer diamonds or pearls?"

That last question came from an audience member at the end of the November 15 Democratic debate. It turns out, as first reported by Marc Ambinder, that the questioner would have preferred to ask a substantive question, but CNN only offered her the opportunity to ask about jewelry.

As Ezra Klein has noted, this is particularly shocking in light of the fact that the cable channel has made a big deal about the Clinton campaign planting a question about global warming in an audience recently. Planting questions about the future of the earth? Bad. Prompting someone to ask the first woman to have a legitimate chance of being elected president about jewelry preferences? That's just good television.

Incidentally, this isn't the first time CNN has gotten caught prompting an audience member to ask a frivolous question during a debate. According to a November 11, 2003, Associated Press report:

A college student who asked the Democratic presidential candidates at a debate whether they preferred the PC or Mac format for their computers says the question was planted by CNN.

The news network acknowledged Tuesday that a producer went "too far" in telling Brown University student Alexandra Trustman what to ask.

[...]

In an editorial written for the Brown Daily Herald, Trustman said she was called the morning of the debate and given the topic of the question CNN producers wanted her to ask.

Trustman said she was "confused by the question's relevance," and constructed her own question "about how, if elected, the candidates would use technology in their administrations."

But when she arrived in Boston for the debate, Trustman wrote, "I was handed a note card with the Macs and PCs version of Clinton's boxers or briefs question" and told she couldn't ask her question "because it wasn't lighthearted enough and they wanted to modulate the event with various types of questions."

There are few matters more significant to the nation's future than whether the Bush administration's assumption of broad powers once considered to be the domain of dictators rather than presidents will prove to be a temporary condition, like the internment of American citizens during World War II, or the beginning of a sustained slide into totalitarianism, as described in recent books by Joe Conason and Naomi Wolf.

These are serious times. There is no guarantee that the next president will quietly abandon the Bush administration's embrace of torture and wiretapping and detaining people without charging them with crimes. There is no guarantee that the next president will ignore Bush's precedent and treat Congress as an equal branch of government. The political media's shocking indifference to these matters suggests that they think the nation will simply and spontaneously return to normalcy the moment George W. Bush leaves office, governed once again by the laws and principles and freedoms that have long constituted America's essential qualities.

But this is by no means a certainty, and helping Americans understand the approach the various candidates would take to these matters is perhaps the most important thing the media can do over the next year.

It's easy to imagine one excuse some journalists will offer for ignoring these matters: The American people just don't care about habeas corpus and wiretapping. They care about "likability" and whether they'd enjoy having a candidate "in their living room" for the next four years and whether candidates are "comfortable in their own skin." They just don't care about things like the Constitution.

That's bunk. Pure bunk, as recent polls demonstrate.

According to a poll conducted for the ACLU in October, 61 percent of Americans think the U.S. government should have to get a warrant before wiretapping conversations between American citizens and people in other countries -- and 51 percent strongly think that. Only 35 percent think the government should be able to perform such a wiretap without a warrant; only 24 strongly feel that way.

As The Mellman Group, which conducted the poll, explains, there is "both deep and wide" support for the notion that the government must get a warrant before wiretapping phone calls:

Support for this constitutional right is both deep and wide, cutting across every demographic segment. Whether they are old or young (age 60+ 53% warrants required, age 50-59 60%, age 40-49 64%, age 18-39 65%), more or less educated (post-grads 59% warrants required, college grads 61%, some college 63%, high school or less 60%), black or white (black 72% warrants required, whites 58%), upper class or lower (upper/upper-middle 62% warrants required, middle 57%, working/lower 68%) voters favor requiring warrants for government wiretaps of Americans' international conversations. Indeed, there is no segment of the electorate other than Republicans and conservatives among whom support for requiring warrants is less than 53%. Seventy-four percent (74%) of Democrats, 60% of independents, and even 46% of the President's own Republicans oppose tapping Americans' international conversations without a warrant.

Public demand for requiring warrants for government wiretaps of Americans' international conversations also cuts across geography. Large majorities in every part of the country favor requiring warrants: 66% in the West, 61% in the Northeast, 60% in the Midwest, and 58% in the South.

The same Mellman Group poll found that 75 percent of Americans -- three out of four -- think it is important for Congress to "take action now to require the government to get a warrant before wiretapping the international phone calls and emails of American citizens." Just as striking is the intensity of support for this position -- 48 percent of Americans say it is "very important" for Congress to take such action, while only 22 percent say it is "not too important" or "not at all important" (and only 12 percent say it is "not at all important").

The Mellman Group further found that only 28 percent of Americans said the following statement would be a "very convincing" reason to vote against a member of Congress: "The Member voted to make it harder to stop terrorism by requiring the government to get a warrant every time they wanted to wiretap the phone of an American they thought might be helping the terrorists." They added:

Going deeper, we explored whether a vote requiring individual warrants would call into question a Member's commitment to the war on terror. The answer was a resounding no. Just 36% said they would worry that a candidate who "took the view that wiretapping American citizens should require an individual warrant from a court ... was not tough enough to deal with terrorism." A 56% majority would not worry about a candidate's ability to deal with terrorism as a result of such a position.

Another recent poll, this one conducted by Belden Russonello & Stewart, found:

1. Majorities of American voters want the next president to support all five of the ACLU's core initiatives to restore the Constitution -- restoring habeas corpus, closing GITMO, not allowing the president alone to determine who is an enemy combatant, ending torture as U.S. policy, and outlawing eavesdropping on Americans without a court warrant.

2. A large number of voters are unhappy that Congress has not done enough to check the president and protect our constitutional rights. Many more voters believe that Congress has not done enough (49%) compared to only one in four (25%) who believe Congress has interfered too much with presidential power, and 24% who believe Congress has done a good job working with the president.

And just this month, a CNN poll found that 69 percent of Americans consider waterboarding to be torture and that 58 percent think the U.S. government "should not be allowed to use this procedure to attempt to get information from suspected terrorists."

The American people take these things seriously. It's time for the journalists who determine what the candidates have to talk about to begin to take them seriously, as well.

At least as seriously as questions about Halloween costumes, UFOs, and jewelry.

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Summary of questions about presidential powers, the Constitution, torture, wiretapping, civil liberties, and other related matters:

• During the May 3 GOP debate, MSNBC's Chris Matthews asked candidates if they would support a constitutional amendment to allow California Gov. Arnold Schwarzenegger (R), who was born in Austria, to be president.
• During the May 15 Republican debate sponsored by Fox News, candidates were asked whether "enhanced interrogation techniques to include, presumably, water-boarding" should be used.
• During the July 23 CNN/YouTube Democratic debate, candidates were asked, "Most Americans agree it was wrong and unconstitutional to use religion to justify slavery, segregation, and denying women the right to vote. So why is it still acceptable to use religion to deny gay Americans their full and equal rights?"
• During the August 5 GOP debate, moderator George Stephanopoulos asked the candidates a question submitted by a viewer: "What authority would you delegate to the office of vice president? And should those authorities be more clearly defined through a constitutional amendment?"
• During the September 5 Fox News GOP debate, Fox's Wendell Goler asked a question about "ending abortion as a two-step process -- rolling back Roe v. Wade, which would leave it legal in some states, and then a constitutional amendment to ban it nationwide."
• During the September 5 debate, Fox's Carl Cameron asked about a constitutional amendment banning gay marriage.
• During the September 5 debate, Goler asked about wiretapping mosques "even without a judge's approval."
• During the September 5 debate, Goler asked, "Would you approve the use of torture if you felt it would prevent a terrorist attack?"
• During the September 5 debate, Goler asked, "[D]o you feel President Bush may have overreached his constitutional authority in some actions after the 9-11 attacks?"
• During the September 5 debate, Goler asked about the Defense Department's detention facility at Guantánamo Bay.
• During the September 5 debate, Goler asked, "On the issue of executive power, would you grant your vice president as much as authority and as much independence as President Bush has granted to Vice President Cheney?"
• During the September 26 Democratic debate, NBC's Tim Russert asked candidates whether they would support a "presidential exception to allow torture."
• During the October 9 GOP debate, MSNBC's Matthews asked whether it would be constitutional to give the president a line-item veto.
• During the October 9 GOP debate, Matthews asked candidates if they thought they would need congressional approval to take military action against Iran.
• During the October 21 GOP debate, Fox's Cameron and Brit Hume asked about a constitutional amendment banning gay marriage.
• During the November 15 Democratic debate, CNN's Wolf Blitzer asked candidates if "human rights [are] more important than American national security?"
• During the November 15 Democratic debate, an audience member asked about post-9-11 profiling of "hundreds of thousands of Americans." Blitzer followed up by asking about the PATRIOT Act.

Senate Kills Habeas Corpus for Guantanamo Detainees

From Reuters

The Senate voted on Wednesday against considering a measure to give Guantanamo detainees and other foreigners the right to challenge their detention in the U.S. courts.

The legislation needed 60 votes to be considered by lawmakers in the Senate, narrowly controlled by Democrats; it received only 56, with 43 voting against the effort to roll back a key element of President George W. Bush's war on terrorism.

The measure would have granted foreign terrorism suspects the right of habeas corpus, Latin for "you have the body," which prevents the government from locking people up without review by a court.

Congress last year eliminated this right for non-U.S. citizens labeled "enemy combatants" by the government. The Bush administration said this was necessary to prevent them from being set free and attacking Americans.

The move affected about 340 suspected al Qaeda and Taliban captives held at the Guantanamo Bay naval base in Cuba. It also affects millions of permanent legal residents of the United States who are not U.S. citizens, said one of the sponsors of the bipartisan measure, Democratic Sen. Patrick Leahy of Vermont.

"Any of these people could be detained forever without the ability to challenge their detention in federal court" under the changes in law Congress made last year, Leahy said on the Senate floor. This was true "even if they (authorities) made a mistake and picked up the wrong person."

Loebsack Responds: Civil Liberties and Habeas Corpus To Detainees

Congressman Loebsack says "While Congress works to keep America safe we must maintain the broad range of civil liberties afforded to law abiding citizens who contribute economically and socially to our country. We must carefully protect the right of expression and the right of assembly for all law abiding Americans wishing to express their opinions."

"Breaches of the public trust, and potential violations of civil liberties are disturbing and Congressional investigations of the Administration's activities are currently taking place in many House Committees. As a member of the House Armed Services Committee, I have been part of the new majority's efforts to hold oversight hearings on the Administration's intelligence in regard to Iraq among many other topics. Congressional oversight is an essential tradition and function of our Democracy, and serves as a check and balance on the Executive Branch. "

"We must also preserve our country's traditions of laws and justice by upholding habeas corpus. I strongly support, and am a co-sponsor of, H.R. 2826 the Restoring Habeas Corpus Act. This legislation will extend rights under the writ of habeas corpus for individuals currently being detained. I strongly believe our government can take action to protect our county and its citizens while also continuing our tradition of freedoms and civil liberties. "

Habeas Corpus: What Would You Say to Harkin or Grassley?

The Bill of Rights Defense Committee wants to know.

If your senators were to call you this evening and ask how they should vote on habeas corpus on Tuesday, July 17, what would you answer?

Yes, I want habeas corpus restored for all people from whom the Military Commissions Act (MCA) stripped that right--including U.S. residents who are not full citizens? Or would you focus on the Guantánamo Bay detainees, who have been imprisoned for years without the benefit of this basic mandate of fairness? Unfortunately, Congress can't seem to get traction on any of the bills it's created to restore habeas and dismantle the MCA, so in desperation, two senators are trying to attach an amendment to a defense authorization bill just to restore habeas corpus. The bill number is SA 2022, sponsored by Senators Arlen Specter (R-PA) and Patrick Leahy (D-VT).

Either way, you know that your senators will not call you up to ask your opinion. YOU must make the call. Though you may have already called during our recent National Call-In to Congress on Habeas Corpus, please take just a few moments to speak with the office staff of both of your senators in Washington, DC, to make sure they know how their constituents want them to vote.

The universal number to call is 202-224-3121, or you can click here for the direct number to your senators' offices. Enter your zip code, and your congressional representatives' information will appear.

The vote may come up as early as TOMORROW, Tuesday (Jul 17), so you don't have a moment to lose. Please forward this message to all friends, work associates, and others who care about basic rights for all. For talking points and more information, click here. To read the Sunday New York Times editorial, click here.

After your call, please let us know how your call went by filling out the brief survey at the bottom of the BORDC call-in page.Thanks for all you do!

In a related area, True Majority also has a petition for you to sign. And NPR has a great primer.