On June 12, our Supreme Court issued a momentous decision in the war on terror, Boumediene v. Bush.
The court ruled in Boumediene that Congress and the President overstepped their constitutional authority by denying habeas hearings for Guantanamo detainees. The court made it clear that unfettered executive authority to detain will not be tolerated, and that even in terrorism cases the Constitution will be enforced. The petitioners in Boumediene challenged the legality of a portion of the Military Commissions Act of 2006 that denied them the right to seek habeas relief in our federal courts.
Our constitutional right to habeas corpus, a part of Anglo-American jurisprudence since the Magna Carta in 1215, mandates that someone held by our government has a right to a hearing before a federal judge to test the legality of their detention. The Constitution protects the right of habeas corpus as one of our most important civil liberties, and only allows Congress to suspend it in very limited circumstances: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it."
Guantanamo Bay, a military base on a small area of land in Cuba we occupy under the terms of a disputed lease, was carefully chosen as the location to hold the detainees. Lawyers for the current administration thought that non-citizens detained there would be beyond the reach of our federal courts. Even though no other government besides the U.S. has any authority over what happens in Guantanamo, the administration believed the federal courts should not be able to exercise jurisdiction over the detainees since technically the U.S. only leases and does not own the base.
Whether the detainees are allowed a habeas hearing is a very significant issue, both to the detainees and more importantly to the United States as a proponent of the rule of law. The administration has taken the position that the legal principles developed in conventional conflicts apply in the war on terror. One of those principles is that captured enemies may be detained for the length of the conflict, even if they are never charged with any criminal conduct.
The difference between the war on terror and any conventional conflict is that the war on terror may never come to an end. For the Guantanamo detainees, this means that without access to a habeas hearing, they might be held for the rest of their lives without any opportunity to present their case.
And that brings us to Boumediene. The petitioners in Boumediene were captured in many different parts of the world. All were brought to Guantanamo, and went through a military screening process called Combatant Status Review Tribunals. At the conclusion of this process, the CSRTs determined that all of Boumediene petitioners should continue to be held as enemy combatants. None of the petitioners have been charged with a crime, either in our federal courts or before the newly established military commissions. All of them faced the real prospect of lifetime detention without charges or a trial. The administration asserted that the CSRT process, followed by limited federal appellate review, would adequately provide due process for the detainees.
The Boumediene petitioners challenged the adequacy of the CSRT procedures, noting certain deficiencies, including:
n The CSRT proceedings took place years after their capture, halfway around the world from any witnesses that could assist them.
n For security reasons, the detainees often were excluded from the CSRT hearings and not allowed to hear the evidence presented, making it more difficult to respond to the allegations against them.
n It was up to the CSRT to decide whether to obtain witnesses the detainees wanted to present. If the CSRT decided not to, there was no remedy for the detainee.
n Hearsay evidence was allowed at CSRT proceedings, meaning that the detainees' accusers did not have to appear at the hearing. Typically the "evidence" consisted of an officer reading a summary into the record.
n Evidence obtained through torture was allowed at CSRT hearings.
n The detainees were denied counsel at CSRT hearings. Even volunteer attorneys could not attend on behalf of the detainees.
n If the CSRT concluded that the detainee was no longer a threat, the government could simply redo the process an unlimited number of times until the government achieved the desired result.
n Even if the CSRT finally concluded that the detainee was no longer a threat, and the government did not contest the finding, it did not mean that the detainee would be released.
Having the right to a habeas corpus hearing does not necessarily mean that any of the detainees will be freed. What is means is that they will have a real hearing before a United States district judge on the issue of whether they should continue to be detained. Certainly there are people at Guantanamo who deserve to be detained and punished, but it is also possible there are people at Guantanamo who should be released. Under our constitutional form of government, making those kinds of decisions is what our courts are designed to do n they judge.
The decision in Boumediene is, most of all, a victory for the rule of law. It is an unequivocal statement that our tripartite system of government continues to function even in the most difficult of circumstances. Justice Kennedy, writing for the court in Boumediene, recounted what is at stake:
"Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives. …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 important, must be a part of that framework, a part of the law."
James Park Taylor is co-director of the juries and democracy program at the Maureen and Mike Mansfield Center at the University of Montana.