[Ppnews] Coming Up Short on Habeas Corpus for Gitmo Detainees
Political Prisoner News
ppnews at freedomarchives.org
Tue Apr 3 13:01:17 EDT 2007
April 3, 2007
A Supreme Failure
Coming Up Short on Habeas Corpus for Gitmo Detainees
By MARJORIE COHN
The Bush administration has stopped the Supreme
Court from giving the Guantánamo detainees their
day in court - at least for now.
In Boumediene v. Bush and Al Odah v. United
States, forty-five men challenged the
constitutionality of the habeas corpus-stripping
provision of the Military Commissions Act that Congress passed last year.
On Monday Justices Stephen Breyer, David Souter
and Ruth Bader Ginsburg fell one vote short of
the four needed to grant review of the lower
court decision which went against the detainees.
It was no surprise that Justices John Roberts,
Samuel Alito, Antonin Scalia and Clarence Thomas voted to deny review.
Two justices - John Paul Stevens and Anthony
Kennedy - declined review on procedural grounds,
saying the detainees had to exhaust their
remedies before appealing to the high court. That
means they must first go through the appeals
process of the Combatant Status Review Tribunals (CSRT's).
The CSRT's are used to determine whether a
detainee is an unlawful enemy combatant. They
deny basic due process protections such as the
rights to counsel, to see evidence, and to confront adverse witnesses.
The procedure for challenging a CSRT decision is
found in the Detainee Treatment Act (DTA). It is
limited to determining whether the decision was
consistent with the CSRT's standards and
procedures, and whether the use of those
standards and procedures was legal and constitutional.
There are two issues the Supreme Court would have
to decide if it did review this case. First, do
the Guantánamo detainees have a constitutional
right to habeas corpus? In 2004, the Court held
in Rasul v. Bush that the habeas statute applied
to those detainees because the United States
maintains complete jurisdiction and control over Guantánamo.
Second, even if the Court applied its Rasul
reasoning to constitutional habeas corpus, it
would then need to determine whether the
procedure for contesting Combatant Status Review
Tribunal decisions constitutes an adequate substitute for habeas corpus.
It should have been a no-brainer for Justices
Stevens and Kennedy to vote to hear this case.
The DTA's review procedures cannot cure the
sub-standard standards of the Combatant Status Review Tribunals.
Since Justice Stevens authored the Court's two
prior decisions upholding rights for the
Guantánamo detainees, his vote in this case is
puzzling. But if he provided the fourth vote for
review, there's no guarantee he could garner the
five votes needed to overturn the lower court
ruling. Justices Stevens and Kennedy left open
the option of future review if "the government
has unreasonably delayed proceedings" or causes
the detainees "some other and ongoing injury."
Justice Stevens evidently thought it prudent to
side with Justice Kennedy at this point to
cultivate the latter's vote on the merits down the road.
Meanwhile, the detainees languish in confinement
that could last the rest of their lives if they
are denied the right to have a U.S. judge hear
their habeas corpus petitions. Of the 755 men and
boys held at Guantánamo in the past five years,
Bush has called only 14 of them "high value
detainees." Just 10 - not including any of the 45
men appealing the current case - have been charged with a crime.
Although the Supreme Court has stood up to the
Bush administration in the past, it is
precariously balanced and cannot be relied upon
to consistently provide justice. Congress has
finally shown the will to challenge the Bush
agenda - on the Iraq war, and the U.S. Attorney
firing scandal. The ball is in Congress's court
to rescind the habeas-stripping provisions of the Military Commissions Act.
Marjorie Cohn, a professor at Thomas Jefferson
School of Law, is president of the National
Lawyers Guild, and the U.S. representative to the
executive committee of the American Association
of Jurists. Her new book, Cowboy Republic: Six
Ways the Bush Gang Has Defied the Law, will be
published in July. See
The Freedom Archives
522 Valencia Street
San Francisco, CA 94110
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