On June 12, 2008, the Supreme Court ruled in a 5-4 majority in the case of Boumediene v. Bush. The case centers on whether the right of habeas corpus guaranteed U.S citizens by the constitution, extends to prisoners held on non-U.S. soil; in this case the Guantanamo Bay, Cuba (GITMO) detention facilities.
The court found that this right does extend to these people, even though they were captured and are detained on foreign soil by the U.S. government.
Habeas Corpus
This is also the “writ” of Habeas Corpus which gives a detained person the right to pursue legal relief in the case of an unlawful detention. This right also extends to include another person, acting on the detained persons behalf, to seek review.
Article I, Section 9 of the Constitution
“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.”
This decision follows on the two year heels of the June 29, 2006 Supreme Court ruling that these prisoners were also entitled to the rights of the Geneva Convention which the Executive branch had also sought to deprive them of.
These rulings which are reigning in the excessive powers assumed by the Executive branch are being assailed vigorously as impeding our countries ability to fight the war on terror. As an example, here is a lift from a fairly influential newsletter from the conservative side:
“ Do you believe foreign terrorists should be treated as American citizens? Should they have the same rights as American citizens?
Well, according to five justices of the United States Supreme Court, the answer is an emphatic YES!
Recently, in Boumediene v. Bush, five justices ruled that suspected terrorists captured in foreign lands -- potential bombers and assassins who've never set foot on United States soil -- have to be tried in an American civilian court WITH ALL THE RIGHTS GUARANTEED TO UNITED STATES CITIZENS UNDER OUR CONSTITUTION! “
Rather than debating the finer legal points, it seems that the issue comes down to more fundamental beliefs about our treatment of people and their protections from the potentially abusive power of governments.
This of course does not extend to people we know are trying to kill us. They should be killed in the theatre of war and dealt with as severely as our laws allows upon capture.
But “known to kill us” and those “we think are trying to kill us” are two different things.
If individuals are detained under “we think are trying to kill us”, without legal redress, we may have detained and taken away the life and liberties of innocent people regardless of their country of citizenship and what part of land they occupy.
If you believe that wrongful detention won’t happen and/or that the military (military tribunals) and the U.S. government are always right in their conclusions, evidence would suggest otherwise.
You don’t have to go on a very extensive search to find case after case of our own citizens, tried, convicted and incarcerated for years, that were eventually found innocent as new facts come to light or evolving sciences are applied such as DNA testing. If we put ourselves in these wrongfully convicted people’s shoes, these innocent people who lose everything, it would seem that we would want to err on the side of the utmost caution in taking away a person’s liberty, family and life regardless of nationality. A shining example is the case of a fellow by the name of Mehdi Ghezali who was released from GITMO “detention” after two and half years without ever being charged.
There is also an important difference in our War on Terror. This is not a war of nations where uniformed soldiers fight on each side of the battlefield. It is not a war that will have an end date where we can detain known “soldiers” and return them at the end of the conflict knowing that with the battle won they will go home to peacetime never to fight us again.
This war is more akin to our Drug War, where there is no end in sight. We can anticipate the War on Terror to continue through the generations. It is a war where detention may easily be for life if review is forbidden during this permanent “suspension”.
The other case made by people opposing the decision is that these people will have access to our court systems and use U.S. taxpayer resources to game the system. Many of these same people are proponents of clogging our court systems and prisons with people who have hurt no one but have some amount of marijuana in their possession. Over a million divorce filings are made each year. It seems that if we can support these efforts in our court systems, we certainly have the ability to review whether some number of the 500-700 detainees have been wrongfully stripped of their freedom.
In their SECOND REPORT ON THE GUANTANAMO DETAINEES on March 20, 2006, Professor Mark P. Denbeaux of the Seton Hall University of Law, in conjunction with other authors, provides an excellent review of the issues on the 517 detainees held at GITMO at the time. Two very important statistics should send up the flare:
- Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies.
- Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive affiliation with either al Qaeda or the Taliban.
Again the issue is not to try and tie the hands of those protecting our country.
We stand proudly as a Nation on our beliefs in the rights of individuals, in freedom, fairness and protecting the individual from overreaching government power and its potential abuses.
We are a great country because of these beliefs and the laws that protect them.
We need to exercise great care in protecting these basic rights for every individual within control of our boundaries, whether the boundaries we’ve defined are on our soil or elsewhere and that we “walk our talk”.
The Supreme Court got it right!



