[Ppnews] Coming Up Short on Habeas Corpus for Gitmo Detainees

[Political Prisoner News]

http://www.counterpunch.org/cohn04032007.html

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 
<http://www.marjoriecohn.com/>http://www.marjoriecohn.com/.


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