JEFFREY BROWN: Today’s decision extends the Bush administration’s losing streak to three Guantanamo-related cases.
In 2004, the Supreme Court said U.S. federal courts had jurisdiction to decide whether detainees at Guantanamo were rightfully imprisoned.
In 2006, the court invalidated an executive branch decision creating military tribunals, saying it lacked congressional authorization.
In response, Congress passed the Military Commissions Act of 2006, which instituted the military tribunal system now in use at Guantanamo. Part of that act removed the habeas corpus protection for detainees, the ability to challenge their detention in court.
And it was on this that the latest legal debate centered. Today’s ruling involved two cases, Boumediene v. Bush and al-Odah v. United States.
Lakhdar Boumediene, an Algerian national, was arrested in Bosnia in October 2001. Bosnian authorities accused him of plotting to attack the U.S. embassy in Sarajevo, and he was handed over to the U.S. military.
Fawzi al-Odah, a Kuwaiti, was in Afghanistan in 2001 on what he claimed was a humanitarian mission. He crossed into Pakistan after the U.S. invasion. He was captured and transferred to U.S. authorities, who sent him to Guantanamo.
Thirty-five other detainees are included in these cases. In all, some 270 men are currently held at the detention center on the eastern end of Cuba.
The facility was opened in early 2002 and instantly created worldwide controversy over the legal status under which prisoners remain held.
Allegations of abusive interrogation practices have also been lodged.
The military tribunals were in session just last week, with the arraignment of top members of al-Qaida, including Khalid Sheikh Mohammed, the self-proclaimed planner of the 9/11 attacks.
Habeas corpus and the Supreme Court
JEFFREY BROWN: And for more on today's decision, we turn now to NewsHour regular Marcia Coyle of the National Law Journal.
Marcia, let's fill in the picture a bit.
MARCIA COYLE, National Law Journal: OK.
JEFFREY BROWN: What exactly were the detainees asking the court for?
MARCIA COYLE: OK, Jeff, at the heart of this case is the Constitution's writ of habeas corpus, a fundamental safeguard of liberty. When it's invoked, the government must come forward and justify why it's holding someone in detention.
The Constitution itself says it may not be suspended, except for public safety in cases of invasion or rebellion.
The detainees in these two cases essentially asked the court two questions. First, did they have any right to challenge the legality of their detentions through a writ of habeas corpus?
And, second, if the court said, yes, they did, did the Military Commission Act of 2006, which stripped the federal courts of their authority to hear habeas petitions, act as an unconstitutional suspension of the great writ of habeas corpus?
JEFFREY BROWN: You and I both were just saying our Latin -- we took Latin a long time ago, but habeas corpus, "Let us have the body," or, "Bring forward, produce the body," basically.
MARCIA COYLE: Exactly.
JEFFREY BROWN: So an important legal -- well, throughout legal history, a legal tradition. Justice Kennedy said what?
MARCIA COYLE: On the first issue, Justice Kennedy held for the detainees. He made a lengthy analysis of the history of habeas corpus, which goes back centuries, and ultimately concluded that the Constitution has full effect in this area at Guantanamo Bay, because of the framers' understanding of habeas corpus as a key element in the separation of powers and also because of the status of Guantanamo Bay.
As the court found four years ago, Guantanamo Bay, for all practical purposes, is under the control of the United States. The court today rejected the Bush administration argument that because Cuba owns Guantanamo Bay it's outside the jurisdiction.
JEFFREY BROWN: So not part of the United States, but the court is saying under the jurisdiction, for all practical purposes, at least in this place?
MARCIA COYLE: That's correct. So these detainees did have the Constitution's protection of habeas corpus.
On the second issue, as to whether the Military Commission Act of 2006 ran afoul of the Constitution's suspension clause, the court here again agreed with the detainees and not with the Bush administration that it did.
In looking at this question, the court had to ask, "Has the government provided an adequate substitute for habeas corpus here?" The government argued that another federal law, the Detainee Treatment Act, was an adequate substitute.
That law set up procedures for review of detainees' status by combatant status review tribunals. And it also provides for very limited federal court review of those decisions.
The Supreme Court, Justice Kennedy, in looking at this substitute, felt it fell far short of what habeas corpus provides.
JEFFREY BROWN: But Chief Justice Roberts disagreed...
MARCIA COYLE: He did.
JEFFREY BROWN: ... and sided with the government and thought that that process was fair.
MARCIA COYLE: That was the core of his dissent. He felt that these procedures were more generous for aliens held by the United States than any other time in our history. And on that ground alone, he would have ruled for the government.
Also in dissent was Justice Scalia. He wrote separately. And also Justices Thomas and Alito joined the dissent.
Justice Scalia simply does not accept the premise that the Constitution's protections extend beyond the boundaries of the United States. And he also felt that this decision today would result, he said, in more Americans being killed. He noted that some detainees that have been released have returned to the battlefield.
JEFFREY BROWN: Now, just in terms of what happens next legally, just as we sat down, there was a bulletin on the news wire. "U.S. military commission trials of Guantanamo detainees to proceed, despite court ruling, says the Justice Department."
Now, what does that mean? And what does it mean for the larger group of detainees?
MARCIA COYLE: Well, I think the decision will not have an immediate impact on these trials. These detainees have been charged with crimes.
The court's decision, first, will have an immediate impact for the 37 detainees who went to the Supreme Court. The court made very clear that it felt these detainees, many of whom have been held for at least six years, are entitled to prompt review.
For other detainees, he said, the executive branch is entitled to a reasonable period to determine their status before a federal court entertains a habeas petition.
JEFFREY BROWN: But, briefly, ultimately, a federal judge could let some of these detainees, order them to be released?
MARCIA COYLE: That is one of the traditional remedies of habeas corpus, to release the person.
JEFFREY BROWN: All right. Marcia Coyle, thanks a lot.
MARCIA COYLE: My pleasure.
Constitution follows the flag
RAY SUAREZ: What impact will today's decisions have on the Bush administration's efforts to combat terrorism? And what will it mean for the detainees still being held at Guantanamo?
For that, we turn to Eugene Fidell, president of the National Institute of Military Justice, and David Rivkin, he's an attorney who previously served in the administrations of President Reagan and the first President Bush.
Well, Eugene Fidell, what were your first impressions of this decision after it was handed down?
EUGENE FIDELL, National Institute of Military Justice: You mean beyond realizing that I was going to spend the next day reading this 150 or so pages?
I thought that this was really a landmark ruling, a ruling that was a strong re-affirmation of the rule of law and the country's commitment to the rule of law.
In terms of its practical impact on the detainees, I think the impact is much less clear. I don't think that this is going to lead to the deliverance of the detainees at Guantanamo Bay.
It's not going to lead to a mimiomachine printing of writs of habeas corpus, releasing people from Guantanamo, although I do think it may have a certain atmospheric effect, in terms of encouraging the administration to try to repatriate as many of the detainees that remain at Guantanamo as possible.
RAY SUAREZ: David Rivkin, your first read of this voluminous decision?
DAVID RIVKIN, Former Justice Department Official: I share Gene's angst about having to read it. But to be honest, and not to be too dramatic, it's one of the worst decisions by the Supreme Court I've ever read, on par with Dred Scott decisions and Plessy v. Ferguson.
The reason for it is not because of its practical implications; they're quite modest. But the sheer ambition, the sheer judicial arrogance that you see here. Let me briefly explain why.
What the court majority -- a narrow majority in the decision written by Justice Kennedy -- is basically saying is this. We want to have a seat at the table always whenever national security issues are being decided.
And we want to have a seat at the table, and the United States government, both political branches, deal with foreigners overseas, but we cannot have a seat at the table if the only reason for it is statutory, because you can give it today and take it away. So the area of Constitution applies overseas.
The biggest fundamental problem of this case is not even habeas, because to get habeas applicability you need to rule that the Constitution follows the flag. That emphatically has never been the rule in our history.
The Constitution is a compact between the American people and its government. The Constitution always applies to Americans, no matter where they are, and the Constitution only applies to foreigners in the United States. The court fundamentally swept this aside.
And it's interesting. It doesn't kick President Bush. In fact, in this decision, the court says, clearly, we're not happy with both political branches dealing with this situation. We want a seat at the table.
Habeas corpus overseas
RAY SUAREZ: That was a big part of the fight, whether these men were, indeed, overseas and whether the protections of the Constitution extended to them.
Is David Rivkin right in his analysis, that this really makes some big, big strides in settling that?
EUGENE FIDELL: Not really. I think, first of all, the question of application to Guantanamo is ground that had been plowed at least to a considerable extent several years ago.
The question of whether the writ of habeas corpus could even reach events in Guantanamo, I think, and I think the majority of the Supreme Court believes, was basically resolved.
Now, how far the Constitution extends to United States government activities outside of the 50 states, there's a lot of history on this. A lot of that history was made in the immediate aftermath of the Spanish-American war.
And one thing I would say, Ray, is that the world has changed; our values have changed; our commitment to the rule of law and our recognition as a country that what we do is of interest and importance to people in other countries has evolved over the years.
And I think that our country is much less willing to have a devil-may-care attitude about doing things outside the country's borders that would offend the Constitution in Brooklyn or Queens.
RAY SUAREZ: Justice Kennedy spoke directly to your point, David. In his opinion, he said, "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."
DAVID RIVKIN: Which is a famous statement (inaudible) and it's funny. That's exactly the thing that made me blanch, because, of course, the fundamental question is this: Does the Constitution envision in this set of circumstances a judicial role?
If it doesn't envision a judicial role, as I believe to be the case, then his switching on and off is entirely irrelevant. But it's disdain for political branches.
Let me emphasize how bold this is. This is not about Guantanamo. This is about potentially Camp Bucca. This is about Bagram. The test they set -- and they're enormously impatient with pedantic tests of sovereignty. They say, "We're going to look at citizenship, but that's not dispositive. We're going to look at whether or not they have control."
Do we have less control, Ray, in Bagram than we have in Guantanamo? And then we're going to look at the practical problems. Guess who gets to determine whether or not the practical problem is insurmountable? The court. The judges. It's always them, first and last.
But, again, they're doing this against the backdrop, as Justice Roberts mentions in his dissenting opinion, is an unprecedented augmentation of procedural and substantive rights the detainees have, more than international law provides, and more than ever have in American history.
And just one small example. In Hamdi case, the plurality opinion written by Justice O'Connor, not Scalia, O'Connor says that it would be sufficient to vindicate the constitutional rights of American citizens detained in this war with an Article 5-type hearing, Article 5, Geneva Convention III.
The c search (ph) that they so roundly condemn as being inadequate give you more rights than Article 5 tribunal, much more. So we have a silly result, that American citizens get fewer rights under Hamdi than aliens get overseas under this decision?
RAY SUAREZ: He brings up a practical problem, doesn't he, that if you say that Guantanamo is America, for the purpose of this discussion...
EUGENE FIDELL: We're there as long as we care to be. We're basically there in perpetuity.
RAY SUAREZ: But isn't Bagram Air Force Base then America, as well, and giving foreigners there the same kind of protections we've just extended to these detainees?
EUGENE FIDELL: No, the answer is that we are basically in Guantanamo Bay as long as we elect to be there. We have a right to stay until we decide we don't want to stay there anymore.
Now, how long we're actually going to stay is another matter. That might be a function of evolving relations with Cuba. That's another conversation.
But I would like to comment on something that David said. And David's entirely right to look at this in terms of the interplay between the three branches of government.
What David sees is a power grab by the judicial branch. I don't see it that way. I think this conversation has to be about the special place of the writ of habeas corpus in the United States Constitution.
It's mentioned in so many words; it's singled out; it's considered the core of our constitutional protections. It's not something that is sort of an afterthought.
And what it says is that it can only be suspended, the privilege of the writ of habeas corpus can only be suspended in times of rebellion or invasion when the public safety so requires.
We're not talking about, you know, peripheral rights. We're not talking about things that have lesser significance. We're talking about a right that goes back to 1679 and has a rich history, and the founders knew all about it.
Upsetting the checks and balances?
RAY SUAREZ: But you heard David also talk about upsetting the balance, upsetting the constitutional apple cart.
Lindsey Graham, who's had a career as a military lawyer, said, "This tremendously dangerous and irresponsible ruling confers upon civilian judges the right to make military decisions." Does it do that?
EUGENE FIDELL: No, I don't think it does that at all. And what you're talking about is simply providing a forum to test whether there is a lawful basis for detaining people. There's still going to be an opportunity for the government to make its case.
Let me also explain about habeas corpus. Anyone who knows about habeas corpus knows that you've got to persuade federal judges of the rightness of your cause.
People are not released at the drop of a hat on habeas corpus. These cases are and are going to continue to be very hard sells.
And the notion that federal district judges or court of appeals judges or justices of the Supreme Court are actually going to try to take the steering wheel away from the commander-in-chief and/or from Congress is really preposterous.
RAY SUAREZ: Is that a worry?
DAVID RIVKIN: It is a huge worry, but let me just point out how intellectually flimsy this decision is. The suspension clause, which you just mentioned, mentions this magic language, OK, rebellion and case of invasion. I wonder if Justice Kennedy asked himself how that condition can be satisfied overseas.
So we're creating a situation potentially with just one problem, where suspension clause in some circumstances can be suspended in the United States, but cannot possibly be suspended in places like Afghanistan or Iraq.
But, second, I agree with Gene and Justice Kennedy that the suspension clause and the habeas is very important, but it's no more sacred of a constitutional provisions that may be more venerable.
They have left open a slippery slope for application of all sorts of constitutional provisions: equal protection clause, due process clause. We've now created an absolutely uncharted territory.
There's a whole range of governmental activities impacting foreigners overseas, not just detention, use of force, confiscation of property...
RAY SUAREZ: But it sounds like Gene Fidell is reading this very narrowly and you're reading its potential expansively...
DAVID RIVKIN: But that's not how it's written.
RAY SUAREZ: ... that this can really do a lot.
DAVID RIVKIN: That's not how it's written, because I don't know of any opinion by any serious scholar of the Constitution which says, "Some provisions of the Constitution are more sacred."
They say here, for example, that the habeas is in the Constitution before the Bill of Rights was introduced. True. Is there any constitutional doctrine which says but the first five articles or the first six articles are more important than the rest?
Everything is of equal dignity. They have created an opportunity to be at the table, to apply every single constitutional protection in any circumstances overseas.
RAY SUAREZ: Well, we'll be watching the affect, the application of this decision, and we'll have to talk to you again. Gentlemen, thank you.
DAVID RIVKIN: Pleasure to be with you.
EUGENE FIDELL: Thank you.