Supreme Court to Bush: You Are Not Above the Law, Gitmo Detainees Have Right to Habeas Corpus

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."