US Supreme Court Overrules White House

By Javier Gonzáles

Anglo-American law has historically recognized a prisoner’s right to demand through a writ of habeas corpus that her jailor justify her imprisonment. In the recent Boumediene v. Bush decision, the United States Supreme Court held that such a right extends to Guantanamo Bay detainees. This is the first time US law has recognized that foreigners imprisoned abroad have access to the habeas protections.

The Supreme Court has waged a legal battle against Congress and the White House over the rights of Guantanamo detainees since 2004. A number of decisions expanding detainee rights have been undermined by subsequent legislation. For instance, in Rasul v. Bush, the Court held that Guantanamo prisoners could bring habeas petitions to American courts. In response, Congress passed the Detainee Treatment Act (DTA), which specifically denied such a right. When the Court held that the DTA did not apply to petitions filed before its enactment, the legislature responded with a provision declaring that the DTA

indeed applied retroactively. Writing for the majority, Justice Kennedy held in Boumediene that Guantanamo detainees were entitled to the writ. The American Constitution provides in the “suspension clause” that Congress may suspend habeas protections during an invasion or a rebellion. The 9/11 attacks constituted neither, so the key question shifted to whether the right extended to alien prisoners held by US forces outside the country. Justice Scalia, in a forceful dissent, argued that since the Constitution was unclear on this point, the ambiguity should be resolved by Congress, the people’s representative. He criticized the majority for its judi- cial activism and predicted that the decision “will almost certainly cause more Americans to be killed."

Kennedy held, however, that “the test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.” He adopted a more pragmatic test, declaring that the writ should be available unless it would be “impractical and anomalous” to grant it. This standard would be met in most military missions abroad, but not in Guantanamo, where granting the writ would be of little military consequence. 

Chief Justice Roberts also dissented. His opinion focused on whether the government has already provided, through the DTA, an adequate substitute for habeas protections. The statute gives detainees the right to challenge their designation as enemy combatants in federal courts. Roberts considered this review process adequate, but Kennedy strongly disagreed, describing the procedure as deeply flawed and incapable of providing “the fundamental procedural protections” of the writ.