Global Policy Forum

By Liliana Segura

In perhaps its most significant ruling in the so-called War on Terror, the Supreme Court resurrected the ancient writ of habeas corpus on Thursday, ruling that the prisoners being held at Guantánamo Bay have the right to challenge their imprisonment in U.S. courts.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Justice Anthony Kennedy said, writing for the majority in Boumediene v. Bush. "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."

Center for Constitutional Rights President Michael Ratner, who has spearheaded the legal defense of the prisoners at Guantánamo Bay, called the decision a "vindication," telling reporters in a conference call hours after the ruling that he was "incredibly thrilled and moved" by the 5-4 decision, which, for CCR, marked the culmination of over half a decade of fighting for the legal rights of the men at Guantánamo, some 270 of who have still not been charged.

"It's been a long struggle," Ratner said, "We were out there alone in the beginning." Indeed, the CCR filed the first lawsuit on behalf of a Guantánamo prisoner in February 2002, in the case Rasul v. Bush, on behalf of prisoners David Hicks, Shafiq Rasul and Asif Iqbal. It was an act of moral and professional courage at a time when the country found itself paralyzed by the terrorist attacks of September 11th. Today, six and a half years after the first hooded "detainees" were brought to Gitmo's Camp X Ray, there are hundreds of lawyers representing the prisoners in Cuba. Many of them will likely be filing habeas petitions in the name of their clients in a matter of days.

"I suspect that things are going to move quite rapidly," Ratner said, in large part because of the Court's concern, expressed repeatedly throughout the ruling, that Guantánamo's prisoners have been in legal limbo for far too long.

"In some of these cases, six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands," wrote Justice Kennedy. "... 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."

"A Six-Year Nightmare"

From the beginning, the fight over Guantánamo has been one of law versus politics. Thursday's ruling was the third time the Supreme Court ruled against the Bush administration's handling of suspects at Guantánamo Bay. But the story of Guantánamo reaches back further than the Court's 2004 ruling in Rasul. The history goes back, of course, to 9/11.

One week after the terrorist attacks against the World Trade Center and the Pentagon, Congress passed the Authorization to Use Military Force Against Terrorists, which declared that the president "is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks ... or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States." The resolution passed 420 to 1 in the House (with 10 not voting) and 98-0 in the Senate (with two no-votes). (The "AUMF" would later be used to try to justify not only the Bush administration's controversial military commissions, but the White House's warrantless wiretaps as well.)

On November 13, 2001, President Bush took this mandate and issued a military order titled "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism," which laid out the need for military commission trials for any such suspects. In January of 2002, Bush officially declared these suspects "enemy combatants."

"The U.S. government refuses to classify the detainees officially as POWs," CNN reported on January 23, 2002, noting that the identities of those held was being kept secret. "Officials suggest the Taliban and al Qaeda members don't deserve that designation." The designation, after all, would mean that the anonymous prisoners had rights under the Geneva Conventions -- a claim denied by then-Secretary of Defense Donald Rumsfeld.

"These people are committed terrorists," Rumsfeld said. "We are keeping them off the street and out of the airlines and out of nuclear power plants and out of ports ... and it seems to me a perfectly reasonable thing to do." Days later, Vice President Cheney called the men held at Guantánamo "the worst of a very bad lot. They are very dangerous. They are devoted to killing millions of Americans." The next month, on February 18, 2002, the Center for Constitutional Rights filed a lawsuit against the Bush administration.

Rasul v. Bush

The first ruling by the Supreme Court over the prisoners at Guantánamo Bay was decided in June 2004, in the case Rasul v. Bush. The ruling threw a wrench in Bush's proclamation that, as commander-in-chief, he had the power to determine who was and who was not an "enemy combatant." Indefatigable Guantánamo lawyer Clive Stafford Smith, head of the UK-based legal non-profit, Reprieve, and one of the attorneys who brought forth the lawsuit, described the development in his book, The Eight O'Clock Ferry to the Windward Side (Nation Books):

Prior to June 28, 2004, assessing guilt had been easy. President Bush had conclusively determined that all the prisoners were "bad people" and designated them enemy combatants. The military did not give them any opportunities to contest their status. They had, we were told, been "through multiple layers of review" before they reached Guantánamo and everyone had been captured on the battlefield. What more did anyone want?

What the Court wanted was something more than executive reassurance that the process being undertaken at Guantánamo was legally sound. As it turns out, it wasn't. The justices' 6-3 ruling in Rasul held that U.S. courts had the jurisdiction to decide whether non-U.S. citizens were being rightfully held, granting prisoners the right to bring forth habeas challenges despite the fact that they were "aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not 'ultimate sovereignty.'"

The Bush administration's creative response to this legal defeat was the creation of the Combatant Status Review Tribunal (CSRT), which Stafford Smith described as "the diminutive cousin of the (military) commission." (The commissions, it bears noting, were themselves unaffected by the Court's ruling on Thursday.)

"[T]here are no formal charges; [the prisoner] is presumed 'guilty' of being an enemy combatant, even though there is no clear definition of what that means; a panel of three military officers serves as judge and jury; the prisoner is allowed no lawyer, only a 'Personal Representative' from the military who reports everything the prisoner says back to his superiors; the prisoner is not allowed to know what the classified evidence is against him and so forth."

The ultimate point of the CSRT was to grant legal cover to the Bush administration's designation of suspects "enemy combatants" (Supreme Court ruling be damned). What's more, in the unlikely event that a prisoner was found not to be an enemy combatant, a second CSRT could be brought forth.

The CSRTs were officially established on July 7, 2004. That day, a senior defense official told reporters at a Pentagon press briefing that the CSRTs would "consist of three neutral military officers." "And by neutral, I mean military officers who have not previously been involved with the detainee either in his capture or in any either battlefield determination or subsequent review of his status as a detainee, or any interrogation, for example." The explanation ignored the fact that a military officer participating in a "war on terror" was, by definition, not a "neutral" party.

"It's a streamlined process," the senior defense official went on. When a reporter asked whether "lawyers will have access to people down at GTMO for purpose of habeas challenges," the defense official responded, that was "subject to security arrangements and other arrangements that need to be worked out." "I mean, all the precise details of that would have to be worked out in the future," added a Department of Justice official, standing alongside his Pentagon colleague.

The CSRTs started later that summer. In August 2004, Gita Gutierrez of the Center for Constitutional Rights became the first civilian lawyer to visit Guantánamo Bay.

Torture and the Detainee Treatment Act

As legal wrangling continued over the rights of the prisoners at Guantánamo, rumors of torture became louder and, eventually, substantiated claims. In July of 2004, a Red Cross report (leaked to the New York Times in November 2004) described "humiliating acts, solitary confinement, temperature extremes, (and) use of forced positions" against prisoners. Gutierrez, defending Mohammed al-Qahtani, known as the "20th hijacker," would later describe the torture inflicted upon her client in a sworn declaration:

"Mr. al-Qahtani was subjected to a regime of aggressive interrogation techniques, known as the 'First Special Interrogation Plan.' Those techniques were implemented under the supervision and guidance of [former Defense] Secretary [Donald] Rumsfeld and the commander of Guantánamo, Major General Geoffrey Miller.

"These methods included, but were not limited to, 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory over-stimulation, and threats with military dogs."

Compounded by revelations in the spring of 2004 of the sadistic torture at Abu Ghraib, the Bush administration found itself barraged with accusations of torture by critics inside and outside government. Meanwhile, hunger strikes began among the prisoners at Guantánamo, followed by forced feeding (itself a form of torture).

Ostensibly meant to address concerns over torture, in 2005, the Detainee Treatment Act passed the House and Senate by overwhelming margin. It was signed in as part of the 2006 Defense Authorization Act, and Sen. John McCain (before he made his peace with torturing suspects), was praised for his effort to codify humane treatment of the men held at Guantánamo, which was laid out as such: "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment." Such treatment was defined as anything prohibited under the "Fifth, Eighth, and Fourteenth Amendments to the Constitution."

Crucially, however, the Detainee Treatment Act (DTA) also included a clause stating that prisoners held at Guantánamo did not have the right to bring forth habeas appeals in U.S. courts, critically undermining the Supreme Court's ruling in Rasul. "In short, the amendment is aimed at limiting detainees' access to courts," Yale Law professor Judith Resnik concluded. Indeed, "within days of the passage of the DTA, the federal government relied on the law to seek dismissals of some 160 lower-court cases involving detainees at Guantánamo." In addition, based on the DTA, the Bush administration tried to get another case thrown out: Hamdan v. Rumsfeld.

Hamdan v. Rumsfeld

On June 29, 2006, the Supreme Court ruled in the landmark case Hamdan v. Rumsfeld that the Bush administration's system of military tribunals was unconstitutional, going back and revisiting their original foundation in the fall of 2001. "Brushing aside administration pleas not to second-guess the commander in chief during wartime," the Washington Post reported, "a five-justice majority ruled that the commissions, which were outlined by Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions."

It was a major victory for the rule of law, and a huge setback for the Bush administration. Not that the prisoners held at Guantánamo would be closer to release. ("The American people need to know that this ruling, as I understand it, won't cause killers to be put out on the street," President Bush said.) But with the November mid-term elections approaching, the Bush administration responded with typical hubris: It decided to change the law.

The Military Commissions Act

On September 6, 2006, Bush gave a speech in which he announced his intention to send Congress a bill to revive the military commissions system. "We're now approaching the five-year anniversary of the 9/11 attacks," he said. "And the families of those murdered that day have waited patiently for justice. ...They should have to wait no longer."

He announced that Khalid Sheikh Mohammed, Abu Zubaydah, Ramzi bin al-Shibh, "and eleven other terrorists" suspected in the 9/11 attacks had been transferred to Guantánamo Bay. "As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September 11, 2001 can face justice." The bill was called the Military Commissions Act, and over the protests of many, it passed Congress, in a politically-charged atmosphere, and was signed into law on October 17th. The law broadly defined an "unlawful enemy combatant" as anyone "engaged in hostilities or who has purposefully and materially supported hostilities against the United States," and dramatically rolled back the legal gains represented by Hamdan, most crucially, suspending the writ of habeas corpus.

A week after Congress passed the Military Commissions Act, on October 4 Michael Ratner published an article in The Nation addressing the full implications of Congress' playing politics with the Constitution. "Our loss in Congress last week has consequences for citizens, as well as for legal permanent residents (green card holders) and noncitizens anywhere -- and consequences for the rule of law in this country," he wrote.

Habeas corpus, which has its origins in the Magna Carta of 1215, is the 'Great Writ' protecting people from arbitrary detention, disappearance and indefinite detention without charges. The cornerstone of Western justice, it is essential to the idea that laws -- not individuals, be they kings or Presidents -- govern a land.

The Center for Constitutional Rights, along with lawyers of all political backgrounds from some of the country's largest law firms, has filed habeas corpus petitions for nearly 500 detainees at Guantánamo -- none of whom have yet had their day in court. Twice in the past five years the Supreme Court has insisted that habeas corpus applies to these prisoners and ruled that the Bush Administration must apply the law. Yet last week Congress buckled in the face of election-year rhetoric about "terrorism" from the White House and passed new legislation denying our clients the right to challenge their detentions, or even to see the evidence against them. While I'm convinced that this law will not stand in court, we are still facing at least a year of challenges before it is declared unconstitutional.

"The Administration's fear-mongering and electioneering may have prevailed in the short term," he concluded, "but a growing number of people are unwilling to accept the destruction of our democracy."

"A Historic Victory for the Rule of Law"

Thanks to those people, a year and eight months later, yesterday's ruling in Boumediene v. Bush, which defines the right to habeas corpus as a constitutional right to be applied to foreign nationals -- no matter what their "enemy combatant" designation, marked the end of "a six-year nightmare" -- a "final vindication," according to Ratner, who recalled the extraordinary challenge of taking on the Guantánamo cases back in the fall of 2001. "We made a decision ... in very difficult times," he said. "The Supreme Court has acknowledged what we've been saying all along," said CCR executive director Vince Warren, who called the decision "the first step ... in reversing a dangerous and overzealous set of policies by the Bush administration."

"Today, unambiguously the rule of law prevailed," said Gita Gutierrez. The Bush administration, she said, can no longer treat Guantánamo as a "no-law zone." Indeed, as Justice Kennedy wrote in the decision, "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." What's more, "the political branches," he said do not "have the power to switch the Constitution on or off at will."

There were dissenters, of course, on and off the bench, who, with wild-eyed fervor, took the now-familiar Bush administration line. "America is at war with radical Islamists," declared Justice Antonin Scalia, who went so far as to say that the ruling "will almost certainly cause more Americans to be killed."

Presidential nominee John McCain, when asked what he thought of the Supreme Court ruling, told reporters that he had not yet had a chance to read the opinion. "It obviously concerns me," he said. "These are unlawful combatants, they are not American citizens." He said it was important to "pay attention to Justice Roberts" who also dissented. But he maintained that he believes Guantánamo should be closed. Obama, once a vocal critic of the Military Commissions Act who has since been largely silent on his intentions when it comes to Guantánamo, labeled the decision a rejection of "yet another failed policy supported by John McCain" and described it as "an important step toward reestablishing our credibility as a nation committed to the rule of law."

Meanwhile, President Bush, on his "farewell" tour of Europe, said that, although this was a Supreme Court ruling, "that doesn't mean I have to agree with it." "I strongly agree with those who dissented," he said. "... The dissent was based upon their serious concerns about U.S. national security." He also hinted that, as he has done for six years, he would consider his legislative options.

But as far as the CCR is concerned, Bush cannot change the law this time. This is a constitutional ruling, not a statutory one. The legislative options are virtually nonexistent. "The decision," according to Gutierrez, represents "finality that we have not had in the last six years."

While this ruling grants the handful of prisoners who have already been charged and are being tried under military commissions little immediate assistance, the vast majority of prisoners at Gitmo -- some 270 men -- now have the right to have their attorneys bring forth habeas appeals to Washington. The burden of proof will be on the government to establish that there is a legal and factual basis for the suspects' detention. Although the implications vary for each defendant, depending on the state of his case, Ratner said, "My deeper belief is that a lot of these cases are just going to be gone."

"I've never said this before," he said, but this could mean "a death knell for Guantánamo."