Posted by Curt on 12 June, 2008 at 4:30 pm. 39 comments already!


PDF of ruling Here.

So says Justice Scalia in his dissent of a horrible, horrible decision from the Supreme Court that basically says our Constitution applies worldwide:

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. Cf. Hamdi, 542 U. S., at 564 (SCALIA, J., dissenting) (“[I]ndefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ”). This Court may not impose a de facto suspension by abstaining from these controversies.

See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not appropriate in cases . . . in which the legal challenge ‘turn[s] on the status of the persons as to whom the military asserted its power’ ” (quoting Schlesinger v. Councilman, 420 U. S. 738, 759 (1975))). The MCA 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.

Here is the Scotus Blog:

In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.

The Court stressed that it was not ruling that the detainees are entitled to be released — that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that “we do not address whether the President has authority to detain” individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba; that, too, it said, is to be considered first by the District judges.

The Court also declared that detainees do not have to go through the special civilian court review process that Congress created in 2005, since that is not an adequate substitute for habeas rights. The Court refused to interpret the Detainee Treatment Act — as the Bush Administration had suggested — to include enough legal protection to make it an adequate replacement for habeas. Congress, it concluded, unconstitutionally suspended the writ in enacting that Act.

Justice Kennedy:

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Of course they are, but for enemy combatants captured on the battlefield in a far off land and held on foreign soil? Are you freakin kidding me?

And now, the man behind 9/11, Khalid Shaikh Mohammed, will have access to our courts and all the bells and whistles that come with it. He wasn’t read miranda rights I’m sure….does that count now also? The soldiers who captured them will now have to testify?

Ed Morrissey asks:

In our 232-year history, when have we ever allowed that kind of access to enemy combatants not captured inside the US itself?

Justice Scalia:

Both the Chief Justice and Justice Antonin Scalia issued dissenting opinions, and all four dissenters joined in both dissents. In his dissent, Justice Scalia writes, “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.” Justice Scalia’s 25-page dissenting opinion concludes, “The Nation will live to regret what the Court has done today. I dissent.”


Dan McLaughlin at Redstate has been reading through the opinion and it appears that the majority believed that while Cuba was foreign soil, the US had sovereignty over their little piece of land, thus Habeas Corpus applies:

[F]or purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take noticeof the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory.

Were we to hold that the present cases turn on the political question doctrine, we would be required first to accept the Government’s premise that de jure sovereignty is the touchstone of habeas corpus jurisdiction. This premise, however, is unfounded. For the reasons indicated above, the history of common-law habeas corpus provides scant support for this proposition; and, for the reasons indicated below, that position would be inconsistent with our precedents and contrary to fundamental separation-of-powers principles.


Nothing in Eisentrager says that de jure sovereignty is or has ever been the only relevant consideration in determining the geographic reach of the Constitution or of habeas corpus. Were that the case, there would be considerable tension between Eisentrager, on the one hand, and the Insular Cases and Reid, on the other. Our cases need not be read to conflict in this manner. A constricted reading of Eisentrager overlooks what we see as a common thread uniting the Insular Cases, Eisentrager, and Reid: the idea that questions of extraterritoriality turn on objective
factors and practical concerns, not formalism.


And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

What a horrible day this is for the War on Terror. God knows what kind of damage this ruling will cause in the future for our country.


More Scalia from the full opinion:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other Constitutional protections as well). It blatantly misdescribes [sic] important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. 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.


Marty Lederman believes the court left some issues untouched:

But as far as I can tell just yet, the Court did not reach the two even more important questions:

1. Whether the Constitution applies to detainees held outside GTMO; and

2. What the substantive standard for detention is: “It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined.”

At first glance, it would appear that although the decision is momentous, there are other important things that it does not do:

It does not speak to whether GTMO should be closed (although it basically undermines the Administration’s principal reason for using GTMO in the first place, which was to keep the courts from reviewing the legality of the Executive’s conduct).

Nor does it affect, in any dramatic sense, possible military commission trials — with the important exception that it invites the defendants in those trials to raise constitutional defenses, such as under the Ex Post Facto Clause.


Lindsey Graham reacts:

The Court’s decision is bad on many levels and I will continue to review the decision and determine its sweeping effect on our military. I will also explore the possibility, if necessary, of a constitutional amendment to blunt the effect of this decision when it comes to protecting our men and women in the military and our nation as a whole.

The Court has conferred upon civilian judges the right to make military decisions. These judges have virtually no training in military matters yet civilian judges, in some of the most liberal district courts in the country, will have an opportunity to determine who is a threat to the United States.

Furthermore, the habeas trials will put great burdens on our military forces. Enemy combatants potentially may be able to sue American troops for money damages and federal judges will now be in charge of the day-to-day military prisons and the interrogation of prisoners. This will empower activist lawyers and interest groups to intervene in basic military matters for the first time in history. …

I agree with Chief Justice John Roberts who noted the legal procedures available to detainees today are unprecedented and more than sufficient. I only wish one more member of the Court would have listened to his wise counsel. Instead, they took what I consider to be completely dangerous and irresponsible actions during a time of war.

As does Lieberman:

The Supreme Court’s decision fails, in a dramatic way, to appreciate that we are at war and that our enemies are relentless in their pursuit of our destruction. Let us not forget that at least 30 prisoners that have been released have already returned to the battlefield.


Everything you need to know about the decision from Justice Roberts: (via The Corner)

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine—through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. 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.


McCain is concerned:

BOSTON, MA — Sen. McCain told reporters Thursday that the Supreme Court decision declaring that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to use civilian courts, “concerns” him.

“I was just informed of the Supreme Court decision. I haven’t had a chance to read the opinion yet. It obviously concerns me. These are unlawful combatants, they are not American citizens and I think we should pay attention to Justice Roberts’ (dissenting) opinion in this decision,” McCain said at a Boston press conference this morning, an hour after the ruling was made public. “But it is a decision that the Supreme Court has made. Now we need to move forward.”

As you know, I always favored closing of Guantanamo Bay and I still think that we ought to do that.


Dan McLaughlin on what this ruling did:

Let’s start by noting the fact that the two statutes struck down by the Court today were passed by the U.S. Senate, in which both candidates sit. The Detainee Treatment Act of 2005, a rider to military appropriations, among other things provided a set of procedures, and limited judicial review, for detainees challenging their enemy combatant status. It passed 90-9, with both McCain and Obama voting in favor. The Court today held “those procedures are not an adequate and effective substitute for habeas corpus.” The Military Commissions Act of 2006 specifically precluded the DTA’s procedures from being evaded by recourse to habeas corpus review, and eliminated the Supreme Court’s jurisdiction over such cases; it passed 65-34, with McCain voting in favor and Obama voting against. The Court held today that the MCA “operates as an unconstitutional suspension of the writ.”

Then he rips into Obama’s reaction to the ruling. First Obama’s reaction:

Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain.

And then the rip:

It’s not clear what Obama means here. First, if the DTA’s procedures are themselves “a legal black hole,” and if he agrees with the Court that they are inadequate to satisfy due process, why on earth did Obama vote for them? Second, he’s ripping McCain for “support” of Bush’s Guantanamo policy, completely ignoring the fact that McCain has been calling for some time for shuttering the place – part of Obama’s strategy of pretending away McCain’s actual record. Third, if Obama means that McCain “supported” Bush’s policy by voting for the DTA and the MCA, what about Obama’s own vote for the DTA?

I doubt Obama even knows the answer to those questions. He has been flip-flopping more then John Kerry.

More from Michelle Malkin, Macsmind, The Volokh Conspiracy, and here.

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