On June 12, 2008, the Supreme Court ruled 5 - 4 in Boumediene v. Bush. It affirmed habeas rights for Guantanamo detainees. It let them petition for release from lawlessly imposed custody.
Justice Anthony Kennedy wrote the majority opinion. He said America maintains complete jurisdiction over Guantanamo regardless of its offshore location. He opposed political branches "govern(ing) without legal restraint."
He expressed concerns about usurping "power to switch the Constitution on or off at will." Doing so "lead(s) to a regime in which they, not this Court, say 'what the law is.' "
"Even when the United States acts outside its borders, its powers are not 'absolute and unlimited' but are subject 'to such restrictions as are expressed in the Constitution."
He called habeas "an indispensable mechanism for monitoring the separation of powers."
"The test for determining (its) scope must not be subject to manipulation by those whose power it is designed to restrain."
This bedrock right has no adequate substitute.
In Brown v. Vasquez (August 1991), the Ninth Circuit US Court of Appeals "recognized the fact that (the) writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action...."
"Therefore, the writ must be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected."
Habeas rights are fundamental. They date from the 1215 Magna Carta (the Great Charter). They're universal. Boumediene v. Bush affirmed them. On Monday, the Roberts court reversed its earlier ruling.
On June 11, the Supreme Court denied certiorati for seven Guantanamo detainees. Doing so violated the Constitution's Article 1, Section 9, Clause 2. It states:
"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.”
Section 7(a) of the 2006 Military Commissions Act denied Guantanamo detainees their fundamental habeas rights. Boumediene ruled otherwise.
So did Rasul v. Bush (June 2004). The Supreme Court held that Guantanamo detainees may challenge their detention in civil court. In response, Congress enacted the 2005 Detainee Treatment Act. It subverted the ruling.
In June 2006, the Court reacted. In Hamdan v. Rumsfeld, it held that federal courts retain jurisdiction over habeas cases. Military commissions lack "the power to proceed because (their) structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions."
In response, Congress passed the 2006 Military Commissions Act (MCA). It granted extraordinary unconstitutional powers. Guantanamo detainees lost all rights. It let presidents declare anyone (including US citizens) "unlawful enemy combatant(s)."
The 2009 Military Commissions Act called them "unprivileged enemy belligerent(s)." Language changed, not intent or lawlessness.
MCA grants sweeping police state powers. It states that "no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause for action whatsoever....relating to the prosecution, trial, or judgment of a military commission (including) challenges to (their) lawfulness...."
"Any person is punishable... who....aids, abets, counsels, commands....procures" or helps a foreign enemy, provide "material support" to alleged terrorist groups, engages in spying, or commits other offenses previously handled in civil courts.
No evidence is needed. Those charged are guilty by accusation. Judicial fairness is denied.
On June 11, The New York Times headlined "Justices Reject Detainees' Appeal, Leaving Cloud Over Earlier Guantanamo Ruling," saying:
It "refused to hear appeals from seven men held at Guantanamo....passing up an opportunity to clarify its (2008) decision...."
Human rights groups expressed alarm
The Fourth Circuit of Appeals decision remained binding. It said:
"Special factors do counsel judicial hesitation in implying causes of action for enemy combatants held in military detention."
"First, the Constitution delegates authority over military affairs to Congress and to the president as commander in chief. It contemplates no comparable role for the judiciary."
"Second, judicial review of military decisions would stray from the traditional subjects of judicial competence."
"Litigation of the sort proposed thus risks impingement on explicit constitutional assignments of responsibility to the coordinate branches of our government."
The arguments were spurious. Inviolable constitutional and international laws were dismissed. Nonetheless, the ruling stands.
The Supreme Court also rejected Jose Padilla's petition. Unjustly charged as an "enemy combatant," he was lawlessly held for nearly four years in military and civilian confinement.
He was denied due process, isolated, tortured, and dehumanized. He was emotionally destroyed. In court, he was a shadow of his former self. In January 2008, he was sentenced to 17 years, four months in federal prison. He currently endures "supermax" harshness.
ACLU lawyer Ben Wizner represents him. He said the Supreme Court's decision gives Washington a blank check "to commit any abuse in the name of national security, even the brutal torture of an American citizen in an American prison."
Padilla suffered extreme physical and psychological abuse. He sued for damages. He cited statute law and former court decisions. He held top US officials responsible.
He spent two years in solitary confinement at the Consolidated Naval Brig, Charleston, SC. He was denied legal and family contacts. His only human interaction was with interrogators. Food was delivered through a cell door slot.
Blackened windows blocked natural light. He was alternately subjected to prolonged periods of constant artificial light or total darkness. He was denied his legal right to pray five times daily. His Koran was confiscated.
Periods outside his cell included sensory deprivation. It included blackout goggles and sound-blocking earphones. He was denied reading materials, radio and television.
He had no mattress, blankets, sheets or pillows. His bed was a steel slab. His sleep was disturbed by banging, glaring artificial light, noxious odors, and extreme temperature variations.
He was subjected to truth serums, painful shackling for hours, excruciating stress positions, intimidation, and death threats. It was too much for anyone to bear. His mind was turned to mush.
Donald Rumsfeld and other high US officials ordered his brutal treatment. Others lawlessly held also received it. They include everyone at Guantanamo and other US torture prisons.
On February 9, 2007, Padilla's attorneys petitioned for "monetary, injunctive, and declaratory relief for (his) unlawful designation, seizure, and abuse."
In February 2011, a federal district court dismissed his petition. So did the Fourth Circuit in January 2012. The ACLU called it a sad day for the rule of law.
Because Padilla was declared an "enemy combatant," rulings said he fell outside the jurisdiction of civil courts.
They mocked judicial fairness. The High Court affirmed it. They spurned fundamental constitutional and international law rights. They approved torture and other harsh police state measures. They left everyone vulnerable to abusive treatment.
ACLU National Security Project director Hina Shamsi responded, saying:
"Four years ago, the Supreme Court held that the Constitution guarantees Guantánamo detainees the right to test the legality of their detention in federal court."
"The court’s decision in Boumediene v. Bush was a historic ruling, but unfortunately it has been severely undermined by a series of decisions from the federal appeals court in Washington."
"The Supreme Court’s refusal to hear even a single habeas appeal by a Guantánamo detainee in the past four years despite those decisions is inexplicable. Today’s announcement continues that trend and is profoundly disappointing."
Center for Constitutional Rights (CCR) Executive Director Vincent Warren expressed alarm, saying:
CCR "is extremely disappointed in the Supreme Court’s denial of certiorari in the latest set of habeas cases brought by Guantánamo detainees."
"By refusing to hear these cases, and any Guantánamo cases since its 2008 Boumediene decision, the Court abandons the promise of its own ruling guaranteeing detainees a constitutional right to meaningful review of the legality of their detention."
"Today’s decision leaves the fate of detainees in the hands of a hostile D.C. Circuit Court of Appeals, which has erected innumerable, unjustified legal obstacles that have made it practically impossible for a detainee to win a habeas case in the trial courts."
"The D.C. Circuit, the country’s most conservative court of appeals, has reversed every detainee victory appealed to it by the government, and as consequence, district courts in D.C. have ruled in favor of detainees in only one of the last 12 cases before them."
Warren also explained the importance of responsible checks and balances. With few exceptions, they've been sorely lacking.
June 11 was a dark day. Many others preceded it. Rule of law protections don't matter.
Congress spurned them by enacting tyranny. By signing unconstitutional laws, George Bush approved them. So did Obama.
The Roberts Court followed suit. June 11 will live in infamy. Freedom took another heavy body blow. Expect a final coup de grace to end it altogether. It may come when least expected.
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|Allen L. Jasson|
|William John Cox|