Scalia in dissent: 'The nation will regret what the Court has done today'
Tony Mauro, Law.com
06-13-2008
The Supreme Court on Thursday rejected the latest effort by the Bush administration and Congress to deny Guantanamo detainees the right to appeal their imprisonment in U.S. courts.
In a dramatic decision in Boumediene v. Bush that divided the Court 5-4, the justices struck down parts of the 2006 Military Commissions Act that stripped U.S. courts of jurisdiction over the habeas petitions filed by foreign nationals detained at the Guantanamo Bay facility in Cuba. The ruling ordered swift habeas hearings for the detainees.
Within hours of the decision, Royce Lamberth, chief judge of the U.S. District Court for the District of Columbia, where the petitions are pending, said, "I expect we'll call in the lawyers from both sides to see what suggestions they have for how we can approach our task most effectively and efficiently." As many as 200 detainees have habeas petitions pending, many of which were being held in anticipation of the Boumediene decision.
The Justice Department declined comment, with a spokesman saying the complex decision was still under review. At a press conference in Rome, President George W. Bush said, "We'll abide by the Court's decision. That doesn't mean I have to agree with it." Bush said further legislation might be considered.
Even though the decision's margin was narrow, its scope should "mark the beginning of the end of the military commission process," said Steven Shapiro, legal director of the American Civil Liberties Union. Those commissions, Shapiro said, allow "the use of coerced evidence and hearsay and thus cannot survive the constitutional scrutiny that today's decision demands."
Justice Anthony Kennedy(picture below) provided the crucial fifth vote as well as the majority opinion that constituted the third high court rebuke of Bush administration detainee policies. He read at length from the decision at the Court's morning session before a sparse summer audience. Deputy Solicitor General Edwin Kneedler was in court to listen as the government's position was rebuked. Former Solicitor General Paul Clement, who quit last week, had argued Boumediene, telling the justices last December, "The political branch has spoken."
But the Court, as it has before, replied Thursday in effect that the judicial branch has the final word, even in matters that veer close to the conduct of war, a function usually left mainly to the commander-in-chief. "The exercise of those powers is vindicated, not eroded, when confirmed by the judicial branch," Kennedy wrote.
In his 70-page opinion, Kennedy offered a lengthy review of the history of habeas corpus and whether its reach extended beyond U.S. borders. Anticipating that some might think the history lesson was unnecessary, Kennedy wrote, "Remote in time it may be; irrelevant to the present it is not."
Kennedy continued, "Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles."
Addressing concerns about national security, Kennedy said, "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."
Kennedy concluded that the administration had yet again gone too far in restricting civil liberties even in wartime. He cautioned that the ruling does not necessarily mean that the detainees will be freed.
The Court went further, ruling as well on the merits of whether the alternative method devised by Congress in the Detainee Treatment Act to deal with detainee appeals. Noting that some detainees have been held for six years, the majority agreed that it should not bounce that issue back to lower courts. Because of procedural inadequacies, the Court ruled that the alternate review process created by Congress amounts to "an unconstitutional suspension of the writ" of habeas corpus. "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."
The dissenting justices -- Chief Justice John Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel Alito Jr. -- listened impassively as Kennedy read from his opinion.
But then Scalia read from his bitter dissent. He wrote that the Court's decision "will almost certainly cause more Americans to be killed," apparently because it will result in dangerous detainees being released. Scalia cited news reports that some of the detainees that have already been released have returned to the battlefield and been involved in suicide bombings and other hostile acts. "The decision is devastating."
Scalia said that for the first time, military commanders would now have to undertake "the impossible task of proving to a civilian court, under whatever standards the Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. [emphasis added - Ed] The nation will regret what the Court has done today. I dissent."
Roberts also authored a dissent, criticizing the majority for dismissing out of hand the considered efforts of the other branches to respond to prior Court rulings. The chief justice concluded that "this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants."
The ruling, said Roberts, did nothing to advance the rule of law, "unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants."
Advocates for the detainees and civil liberties groups were joyful that even under the solidly conservative Roberts Court, they were able to win a sweeping victory.
"Today's 5-4 ruling by the U.S. Supreme Court is a complete victory not only for our clients but for all Americans and citizens the world over, and, most importantly, for the rule of law," said Pillsbury Winthrop Shaw Pittman lawyer David Cynamon in a statement. He is lead counsel for Khaled Al Odah, one of the detainees in the case. "The decision is a powerful expression of the principle that the Constitution applies even, and especially, in times of war and crisis, and that our Constitution does not allow the creation of a legal black hole like Guantanamo."
American Bar Association president William Neukom says the ruling "helps restore the credibility of the United States as a leading advocate and model for the rule of law across the globe." He adds, "Habeas corpus is the cornerstone of the rule of law in the United States. Adhering to this fundamental tenet of our legal system will simply require that we provide a fair process for determining which detainees should continue to be detained. U.S. courts have risen to the challenge of hearing cases involving national security for more than 200 years. They can and will continue to do so."
Guantanamo Bay
Detainees Legal Updates
U.S. Supreme Court Decisions
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On June 28, 2004, the US Supreme Court handed down two decisions related to the detention of 'enemy combatants' at Guantanamo Bay, Cuba. In the first one, 03-6696: Hamdi v. Rumsfeld, the US Supreme Court, held that "although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker."
In the second case, 03-334: Rasul v. Bush, the Supreme Court held, among other things, that "United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay." The US Administration had, prior to the decision, held that, though Guantanamo Bay was leased, run, administered, and controlled by the United States, the land was still effectively Cuban, and that therefore US courts should not have jurisdiction over that tract of Cuban territory.
On November 7, 2005, the United States Supreme Court agreed to hear a legal challenge to the Bush administration's use of military tribunals to try foreign terror suspects. The specific case in question is that of Salim Ahmed Hamdan, who is accused of being a driver and bodyguard for Osama bin Laden.
On June 29, 2006, the United States Supreme Court handed down a decision on 05-184: Hamdan v. Rumsfeld. The Supreme Court ruled that the current military commissions were illegal under US law and under the Geneva Conventions, and could not continue. U.S officals will now have to figure out another way to try the detainees at Guantanamo Bay, Cuba.
On June 29, 2007, the US Supreme Court announced that it would hear arguments about whether or not detainees held at Guanatanamo Bay can challenge their detention in a U.S. federal court; this announcement reversed an earlier April 2007 decision not to hear arguments on this issue. The cases were Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196.
On June 12, 2008, the US Supreme Court handed down a decision on 06-1195: Boumediene v. Bush, ruling in a 5-4 vote that "Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo." Moreover, The Supreme Court rejected the Bush Administration's position that the Suspension Clause affords detainees at Guantanamo Bay "no rights because the United States does not claim sovereignty over the naval station". Instead, it ruled that while the "Court does not question the Government’s position that Cuba maintains sovereignty, in the legal and technical sense, over Guantanamo, but it does not accept the Government’s premise that de jure sovereignty is the touchstone of habeas jurisdiction."
Military Commissions
Military Commissions have historically been used to prosecute enemy combatants who violate the laws of war; the last time the United States used the Military Commission process was during World War II.
Military commission procedures provide for a full and fair trial to include: the presumption of innocence; a requirement for proof of guilt beyond a reasonable doubt; representation by a military defense counsel free of charge with the option to retain a civilian defense counsel at no expense to the U.S. government; an opportunity to present evidence and call witnesses; a prohibition against drawing an adverse inference if an accused chooses not to testify; and an appeal to a review panel.
Each Military Commission panel consists of a Presiding Officer who must be a judge advocate and at least three other military officer members. The Presiding Officer shall rule upon all questions of law, all challenges for cause, and all interlocutory questions arising during the proceedings. All members of the Military Commission panel, except the Presiding Officer, vote on findings and, if necessary, on a sentence.
If there is a finding of guilt, the Military Commission panel members, excluding the Presiding Officer, may impose any appropriate sentence, including death if referred as a capital case by the Appointing Authority. A sentence of death requires a unanimous vote from a Military Commission panel consisting of at least seven members (excluding the Presiding Officer).
On November 25, 2003, the United States and Australian governments announced that they agreed the military commission process provided for a full and fair trial for any charged Australian detainees held at Guantanamo Bay Naval Station.
On February 24, 2004, the Department of Defense announced charges against two Guantanamo detainees. Specifics of each individuals’ charges are available at d20040224Al Qosi.pdf and d20040224Al Bahlul.pdf.
On June 10, 2004, the Department of Defense announced that charges had been approved against an Australian Guantanamo detainee who would ensuingly be tried by military commission. His charges are available at: d20040610cs.pdf
On June 29, 2004, the Department of Defense announced that charges had been referred to a military commission on three enemy combatants detained at Guantanamo Bay, Cuba. Referral is the step in the military commission process where the appointing authority designates the presiding officer and panel members who will hear a particular case. Copies of the charges are available at: d20040629doc1.pdf and d20040629doc2.pdf
On July 7, 2004, the Department of Defense announced that nine more enemy combatants detained by the United States were subject to President Bush's military order of Nov. 13, 2001. This made these individuals eligible for trial by military commissions. This decision brought to 15 the number of detainees subject to President Bush's military order.
On July 14, 2004, the Department of Defense announced that charges had been referred to a military commission on one enemy combatant detained at Guantanamo Bay. Copies of the complete charges are available at: d20040714hcc.pdf and the referral document can be found at d20040714hac.pdf
On August 24 2004, the Department of Defense announced that the first U.S. military commission in more than 50 years had been convened that day in the case of U.S. vs. Salim Achmed Hamdan who was accused of conspiracy to commit violations of the law of war.
On August 25 2004, the Department of Defense announced that the second military commission had begun that day at Guantanamo Bay, Cuba, for Australian David Hicks. An Australian citizen, Hicks is accused of conspiracy, attempted murder by an unprivileged belligerent, and aiding the enemy.
On August 26 2004, the Department of Defense announced that the third military commission had begun that day for Ali Hamza Ahmed Sulayman al-Bahlul. He was charged with conspiracy to commit war crimes. The proceedings were interrupted, however, when al-Bahlul asked to provide his own defense and engaged in a spirited discussion with the presiding officer.
On August 27 2004, the Department of Defense announced that the fourth military commissions convened that day in the case of U.S. vs. Ibrahim Ahmed Mahmoud al-Qosi, a Sudanese citizen accused of conspiracy to commit terrorism and murder by an unprivileged belligerent, among other charges.
On July 18, 2005, the Department of Defense announced that it intends to reconvene the military commissions in the wake of a unanimous decision by a federal court of appeals that the military commissions process is a proper venue in which to try enemy combatants held at Guantanamo Bay, Cuba, for violations of the laws of war.
On November 5, 2005, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia issued a halt in the progress of the military commission for Australian David Hicks. This stay is pending a ruling in the Supreme Court case of Salim Achmed Hamdan. A decision in that case is expected by July of 2006.
On November 7, 2005, the Department of Defense announced that charges were approved on five enemy combatants detained at Guantanamo Bay, Cuba. Copies of the complete charges can be found here.
On December 1, 2005, the Department of Defense announced that charges were referred to a military commission in the case of Omar Ahmed Khadr. Copies of the referral memorandums are available at: d20051201khadr1.pdf and d20051201khadr2.pdf. Copies of the complete charges are availablehere.
On December 16, 2005, the Department of Defense announced that charges were referred to a military commission in the cases of Binyam Ahmed Muhammad and Ghassan Abdullah al Sharbi. Copies of the referral memorandums are available at: d20051215muhammad.pdf and d20051215sharbi.pdf. Copies of the charge sheets are availablehere.
On December 19, 2005, the Department of Defense announced that charges were referred to a military commission in the cases of Jabran Said Bin al Qahtani and Sufyian Barhoumi. Copies of the referral memorandums are available at: d20051219qahtani.pdf and d20051219barhoumi.pdf. Copies of the complete charges can be found at: here.
On January 20, 2006, the Department of Defense announced that charges were approved and referred to a military commission in the case of Abdul Zahir. A copy of the charge sheet is available at: here .
On February 24, 2006, U.S. District Judge Jed Rakoff in New York ordered the Department of Defense to release the names of all the detainees held in Guantanamo Bay, Cuba. The Department of Defense had until March 3, 2006 to release the identities of the detainees to the Associated Press. The Department of Defense has indicated that they do not plan to appeal and will comply with the ruling.
Combatant Status Review Tribunals
On August 09, 2007, DoD announced the completion of the Combatant Status Review Tribunals (CSRT) for the 14 high-value detainees whose transfer to Guantanamo Bay, Cuba was announced on Sept. 6, 2006.
On July 7, 2004, in response to the Supreme Court's decisions on 03-6696: Hamdi v. Rumsfeld and 03-334: Rasul v. Bush, the Department of Defense announced the formation of the Combatant Status Review Tribunal for detainees held at Guantanamo Bay, Cuba. This tribunal will serve as a forum for detainees to contest their status as enemy combatants. Under this process, detainees held at Guantanamo Bay were to be notified within 10 days of their opportunity to contest their enemy combatant status. According to the DoD factsheet, the tribunals were to be "very much like those cited favorably by the Court to meet the unique circumstances of the Guantanamo detainees, and will provide an expeditious opportunity for non-citizen detainees to receive notice and an opportunity to be heard. It will not preclude them from seeking additional review in federal court."
Tribunals are to be comprised of three neutral officers, none of whom were involved with the detainee. One of the tribunal members will be a judge advocate and the senior ranking officer will serve as the president of the tribunal. Each detainee, in turn, is to be assigned a military officer as a personal representative. That officer is to assist the detainee in preparing for a tribunal hearing. Detainees are to have the right to testify before the tribunal, call witnesses and introduce any other evidence. Following the hearing of testimony and other evidence, the tribunal will determine in a closed-door session whether the detainee is properly held as an enemy combatant.
A number of media accounts including a July 10 story in the Washington Post ("U.S. To Tell Detainees Of Rights" By Josh White) and a July 13, 2004 on in the Miami Herald ("Detainee Notification Falls Short, Critics Say" by By Elise Ackerman) alluded to criticism about this process on the basis that the entire process would still be effectively controlled by the Department of Defense, given that both the tribunal and the counsel given to detainees would be made up of military officers.
While the 03-334: Rasul v. Bush decision opened the way for detainees to contest in federal courts their detention, it was unclear whether these tribunals would convince federal courts that detainees had been given fair hearings to contest their detentions. Left unresolved still, were whether these tribunals would serve as a way to delay acccess of habeas corpus claims to federal courts, whether detainess would be provided access to civilian legal counsel, and whether the Department of Defense is best capable to decide on this matter given its prior assertions that enemy combatants can be held indefinitely without charges and/or access to legal counsel.
On June 4, 2007, the judge in the military commission case of Omar Khadr dismissed all charges against him and adjourned the hearing. The judge argued that the Military Commissions Act of 2006 requires that, in order to be tried by commission, a detainee be an unlawful enemy combatant; with the law differentiating between unlawful enemy combatants and enemy combatants, who fight for a legitimate armed forces. As Omar Khadr had been designated an "enemy combatant" and not an "unlawful enemy combatant", resulting in the dismissed charges. The ruling pointed out an apparent discrepancy created by the Military Commissions Act’s new requirement that detainees be designated as “unlawful” enemy combatants to be tried by commissions, because it was signed into law after the majority of Combatant Status Review Tribunals had been completed at Guantanamo. As a result, and since none of the detainees who have gone through the CSRT process at Guantanamo were designated as unlawful enemy combatants, but rather "enemy combatants" or "no longer enemy combatants," the ruling was seen as having the potential to affect all the current and potential charges against detainees at Guantanamo Bay.
Administrative Review Boards
The Administrative Review Boards (ARB), also known as the Annual Review Boards, are managed through the Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC) at Guantanamo Bay. The ARB is an annual review board that part of the processing a detainee goes through. If a detainee is found to be an enemy combatant by the Combatant Status Review Tribunal, they are then to go before the ARB. The ARB determines if the detainee should still be detained at Guantanamo Bay, released to their home countries for further detention, or just released without any conditions.
During the ARB, detainees are allowed to present evidence and/or call witnesses. Home countries of the detainee are notified about a month before an ARB is to take place. That gives the country time to compile evidence, if they wish, to present to the board in defense of the detainee. Family members of the detainee are also allowed to present statements, evidence or witnesses on behalf of the detainee. Government agencies, such as the Justice, Homeland Security, and State Department and the CIA, are also allowed to present information to the board These boards will be held on an annual basis, thus a detainee has multiple chances to show that they should no longer be detained at Guantanamo Bay.
It should be noted that the United States is not legally bound to hold these review boards. The law of war allows enemy combatants to be held until the end of the conflict. But given the unique and unusual characteristics of the War on Terror, the Department of Defense decided to implement these boards, as a matter of policy, so that detainees are not held any longer then they are deemed a threat to the United States.
On May 18, 2004, the Department of Defense announced that Deputy Secretary of Defense Paul Wolfowitz has issued an order establishing administrative review procedures for enemy combatants captured in the Afghan theater and detained by the Department of Defense at Guantanamo Bay, Cuba.
On September 14, 2004, the Department of Defense announced that Secretary of the Navy Gordon R. England signed the implementing directive for the administrative review procedures for enemy combatants detained by the Department of Defense at the U.S. Naval Base, Guantanamo Bay, Cuba.
On December 14, 2004, the Department of Defense announced that it had conducted its first Administrative Review Board (ARB) for enemy combatants detained at the U.S. Naval Base, Guantanamo Bay, Cuba.
On February 9, 2006, the Department of Defense announced the completion of the first round of Administrative Review Board (ARB) decisions. All of the hearings for this first round were conducted from Dec. 14, 2004, to Dec. 23, 2005. Deputy Secretary of Defense Gordon R. England, the Designated Civilian Official (DCO) for the ARB process, has made final decisions on all 463 board recommendations; these decisions consist of 14 releases (3 percent), 120 transfers (26 percent) and 329 continue to detain (71 percent).
Military Commissions Rulings
On November 8, 2004, a federal judge of the United States District Court in Washington ruled that the Bush administration had violated both the U.S. Constitution and the Geneva Conventions by forming military commissions to try detainees at the U.S. Naval base in Guántanamo Bay, Cuba. Judge James Robertson's ruling put a halt to the commission's pre-trial proceedings against Salim Ahmed Hamdan, a driver and bodyguard of Osama Bin Laden who had been captured in Afghanistan.
According to the decision, the Department of Defense tribunal used to determine the detainee's possible enemy combatant status and which the defendant's lawyer did not attend, could not be considered a "competent" tribunal as a result of lacking insufficient protection of the defendant's rights. Until such time the detainee's status could be properly determined, the military commission trial would be halted by the judge's decision. The ruling effectively struck down the Combatant Status Review Tribunals set in place by the Department of Defense following the late June 2004 decisions by the US Supreme Court, and which, under the ruling, did not comply with the terms of Article 5 of the Third Geneva Convention.
In addition, the judge ruled that in summarily denying prisoner of war status, the Bush Administration had acted improperly and in contravention of the Geneva Conventions. The judge ruled that unless "a competent tribunal determines that the petitioner is not entitled to protections afforded prisoners of war under Article 4 of the Geneva Convention", the detainee could not be tried by military commission.
Government officials immediately announced that they would seek an emergency stay of the judge's ruling and would file an appeal; the contention being that the military commissions, which they felt to be the best way to try detainees who are not legal combatants of a sovereign government. In addition, government officials argued that the US president had "properly determined" that the Geneva Conventions did not apply to al Qaeda affiliates and that the president had acted within the bounds of his authority as commander in chief of the armed forces in convening military commissions to prosecute crimes against the laws of war.
On July 15, 2005, the US Court of Appeals for the DC Circuit overturned the earlier ruling by the lower district court in the case of Salim Ahmed Hamdan. This decision clears the way for the military commissions to resume. The commissions had been on hold since December of 2004, following a federal district court order staying further proceedings in the Hamdan case.
Circuit Judge A. Raymond Randolph, who wrote the court's majority opinion, declared that the military commissions are considered a competent tribunal in which to decide the enemy combatant status of the detainee. The court upheld the government's argument that the Geneva Convention of 1949 does not apply to members of al Qaeda. They ruled that the Geneva Conventions only applies to two types of conflicts, those between states and "High Contracting Parties" of the Geneva Convention or civil war. Randolph went on to say that "al Qaeda is not a state, and it was not a 'High Contracting Party.'" He also said that the war against terrorism and against al Qaeda cannot be considered a civil war because it is international in scope.
On November 7, 2005, the United States Supreme Court agreed to hear a legal challenge to the Bush administration's use of military tribunals to try foreign terror suspects. The specific case in question is that of Salim Ahmed Hamdan, who is accused of being a driver and bodyguard for Osama bin Laden. They handed down their decision for 05-184: Hamdan v. Rumsfeld on June 29, 2006. The Supreme Court declared that the current military commissions were illegal under US law and under the Geneva Conventions, and could not continue. U.S officials will now have to figure out another way to try the detainees at Guantanamo Bay, Cuba.
Other
On October 16, 2007, DoD announced it would grant access for a civilian defense attorney to meet with Majid Khan, a Pakistani national and one of 15 high value detainees held at the detention facility in Guantanamo Bay.
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