"A Generation or More": Habeas Returns to Gitmo

The Supreme Court Finds that Prisoners at Guantanamo Bay are Not Exempt from Habeas Corpus

The following are excerpts from the majority "Opinion of the Court" issued by the Supreme Court of the United States Thursday June 12, 2008 in the case of BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE UNITED STATES, ET AL.

"...the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain. (p. 36)

"The Government presents no credible arguments that the military mission at Guantanamo
would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims. And in light of the plenary control the United States asserts over the base, none are apparent to us. (pp. 39-40)

"There is no indication, furthermore, that adjudicating a habeas corpus petition would cause friction with the host government. No Cuban court has jurisdiction over American
military personnel at Guantanamo or the enemy combatants detained there. While obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. (p41)

"The MCA [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. (p.42)

"...we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal’s findings of fact. ... And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore. (pp.56-57)

"If a detainee can present reasonably available evidence demonstrating there is no basis for his continued detention, he must have the opportunity to present this evidence to a habeas corpus
court. Even under the Court of Appeals’ generous construction of the DTA [Detainee Treatment Act], however, the evidence [that may corroborate his innocence] identified by [petitioner Mohamed] Nechla would be inadmissible in a DTA review proceeding. The [constitutional] role of an Article III court in the exercise of its habeas corpus function cannot be circumscribed in this manner. (p.61)

"Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas corpus. [T]he Government has not established that the detainees’ access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus. MCA [Section] 7 thus effects an unconstitutional suspension of the writ. (pp.63-64)

"In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. And there has been no showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions. To require these detainees to complete DTA review before proceeding with their habeas corpus actions would be to require additional months, if not years, of delay. The first DTA review applications were filed over a year ago, but no decisions on the merits have been issued. 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. Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. (p.66)

"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.
...The judgment of the Court of Appeals is reversed. The cases are remanded to the Court of Appeals with instructions that it remand the cases to the District Court for proceedings consistent with this opinion.
It is so ordered." (pp. 69-70)