Supreme Court Rules in Favor of the Detainees in Massive Blow to Bush Administration

In a massive blow to the Bush Administration, the Supreme Court has ruled 5-4 in favor of the detainees at Guantanamo Bay, Cuba. In the opinion below, Justice Kennedy delivers the opinion of a lifetime: holding faithfully to the Constitution in a time of prolonged crisis.

Kennedy writes: “We hold that Art. I, §9, cl. 2, of the Constitution has full
effect at Guantanamo Bay. If the privilege of habeas
corpus is to be denied to the detainees now before us,
Congress must act in accordance with the requirements of
the Suspension Clause.” Amen, Brother, amen.

He further adds that ““The laws and Constitution are designed to survive, and remain in force, in extraordinary times. 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.”

While Kennedy’s opinion was an impressive treatment of the role and history of the Great Writ, Scalia’s opinion read like a snaring rant in comparison. Some highlights:

– “America is at war with radical Islamists. … Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. . . . The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed . . . The Nation will live to regret what the Court has done today.”

It was a disappointing opinion with the same fear-mongering and sensational language that we see on late night cable programs. Roberts’ dissent was more moderate but still reflected a shocking passive and reduced role of the courts.

As much as a relief as this decision is, it is important to remember how close we can to the loss of this fundamental right. What citizens need to understand is that it is meaningless how many rights are contained in a Constitution, if the government can deny you access to the courts to vindicate those rights. Kennedy’s opinion is an attempt to educate citizens on the centrality of the Great Writ. One can only hope that a few people in Congress will read this opinion and leave the Constitution alone. When Bush refers to the need for more legislation, the only obvious piece of legislation would be a formal vote to suspend habeas — a step that even these members should be incapable of doing.
For a copy of the opinion, click here.

71 thoughts on “Supreme Court Rules in Favor of the Detainees in Massive Blow to Bush Administration”

  1. thanks, Jill.

    re part of your second post, JT said on Countdown that it will still take years for this litigation to be over.

    But (a) Kennedy said the detainees should not bear the burden of further delay (although some delay is necessary), and (b) how can the speedy trial guarantee ever be enforced if litigation takes this long?

  2. This might help answer others’ questions: Also from Center for Constituion…

    We hope that the lower courts will quickly move to hold hearings in the 200-odd pending individual habeas corpus cases where detainees are challenging their indefinite detention without charges. Already, today, the Chief Judge of the District Court for the District of Columbia has called for a meeting of the judges to determine how to proceed. Numerous lawyers filed notices and motions today in pending habeas cases to move them forward immediately. We anticipate that many of these cases will be decided swiftly because the government lacks any factual or legal basis for imprisoning the men. Without today’s decision these men might have remained in detention forever without ever having a real chance to argue for their release before an impartial court. With habeas these men – so many of whom have been officially cleared for release by the military – would never have been locked up and abused because no court was watching. We believe the majority of them will be released once the executive is forced to show up in front of a federal judge and justify their detention with hard evidence.

    The decision’s impact upon the pending military commission cases is indirect. It is likely those trials will continue to progress at their current halting pace. Today’s opinion only means that the defendants in those commissions proceedings – less than 20 men are currently charged – may commence parallel proceedings arguing that they should not have ever been detained in the first place.

  3. far enough, this is part of a legal anaylsis offered by the Center for Constitutional Rights. They do give a detailed anaylysis of the decision at their website.


    In considering the extraterritorial application of the Constitution to Guantánamo, the Court adopted a practical approach it has applied in past cases. The Court strongly criticized the President and Congress’s attempt to declare that because Guantánamo was outside the sovereign territory of the United States, the Constitution did not apply. The Court firmly stated that “To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say ‘what the law is.’” Several factors warranted application of the Suspension Clause to Guantánamo, including (1) that the petitioners are noncitizens who dispute their status as “enemy combatants” as determined by CSRTs in an unfair proceeding, (2) the United States exercises exclusive jurisdiction and control over Guantánamo, with no other country’s laws applying, and (3) no credible arguments exist that habeas proceedings would impede any military mission at Guantánamo. The Court concluded that the individuals at Guantánamo have a right under the Suspension Clause to challenge their detention, and the pragmatic approach it took in reaching that conclusion still leaves space for similar challenges to U.S. detention facilities elsewhere in the world.

  4. “It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.”

    Given this language in the opinion, does this mean the prisoners in black sites are out of luck?

  5. badger:

    There, there, that “study” by the Congressional Republicans* and their apparachicks in the DOD has already been discredited by attorney H. Candace Gorman as simply more unsubstantiated war-mongering. I guess crying “wolf” all the time hurts anyone’s credibility. Maybe some advice for you too, badger.

    By the way, just so you know, everyone cares about our soldiers–everyone that is, except maybe those who keep them in harm’s way for no appreciable purpose other than their own political self-preservation. Wonder how our fighting forces will vote this time around?

    *Query: Does anything said by the Congressional Republicans have any credibility anymore?

  6. rcampbell,

    I would check out the website of the Center for Constitutional Rights. They were a lead group representing the detainees (and our constitution) in this suit. This site may address your question.


  7. rcambell writes: You fear a couple dozen detainees in Guantanamo.

    No, what I fear is they will be released and will return to the battlefield and kill American soldiers as others that have been released from Gitmo have done.

    I guess you don’t care about the soldiers then.

  8. JT:

    Sorry, must be my old black and white with rabbit ears giving me problems. However, you are giving away your Midwest roots. Here in balmy Virginia, it’s seersucker (jacket or pants), and only occasionally khaki suits. We do like your apparel choices, it’s just that Olbermann is such a clotheshorse. Tell him enough of those silk monotone ties though.

  9. JT said: “I try to dress nice …”

    NiceLY, professor, niceLY. for shame. also, you didn’t answer my questions.

  10. I just read this:

    The Supreme Court’s decision on Guantanamo Bay will unleash a torrent of court filings from detainees seeking their freedom but won’t affect the military trials planned for some terrorism suspects, Attorney General Michael Mukasey said Friday.

    Can the lawyers among us please explain this and what is the likely scenario going forward?

  11. From Badger:
    “This is not part of the criminal justice system. We’re not interested in prosecuting them under our criminal laws.

    The US criminal justice system has proven itself quite capable of handling sensitive cases involving terrorism both foreign (Moussari) and domestic (Tim McVeigh, Jose Padilla), thank you very much. As you noted in an earlier rant (perhaps you didn’t read it), this decision doesn’t free the folks in Guantanamo, it defines their rights. To suggest that somehow not prosecuting captured terrorists in secret USSR-esque military tribunals will cost lives on the battlefield takes the convoluted logic of the NeoCons to a new level of absurdity.

    It’s quite sad, though. You have so much fear. Boogie men are everywhere for you. You have such fear those men in caves in Pakistan. You fear a couple dozen detainees in Guantanamo. You have so little faith in America that you’re willing to endorse the subversion of the very underpinnings of our government and relinquish your own rights to quell your fears. Very sad indeed.

  12. “Caught Turley on Countdown at the ten o’clock showing discussing the case. Erudite as ever but they really dumb it down on that show. I was hoping Olbermann would lead with that story but it got second billing. My only mild complaint was Professor Turley’s white dinner jacket for such an auspicious occasion –was it Rick Pitino redux, or just Turley, Jonathan Turley?”



    “white dinner jacket”? Has labor day passed? No, I say. Besides, it was a Khaki suit suitable for the balmy environs of Virginia. I try to dress nice for all of you each night and this is what I get.

  13. badger:

    Levin is just another clang in the cacophony that is conservative talk radio. Quoting his vituperative opinion on the law is like quoting Larry Craig on bathroom etiquette.

    However, I do love his breathless, nonsensical plea for survival in lieu of law, as if one could exist without the other. From a lay neo-con that might be understandable, but from a person who passed a bar somewhere, it’s positively astonishing–or maybe not, since being a Rush Limbaugh clone pays pretty well.

  14. Mark Levin says:

    Denying foreign enemy combatants access to U.S. courts is an incident of war. Ladies and gentlemen, every single president of the United States has taken that position. Every single one. Every single president of the United States. Up until this Supreme Court, the Supreme Court understood that war was not their province, and that enemy combatants held overseas was not their business. And now we have, thanks to the Marxist left of the professoried in our law schools, the activist judges that have been breeded, placed on our courts, a totally different mentality. Treating people who would slaughter us, who would blow up our citizens, who would decapitate children if they had a shot at it, as people who are abused by us at Guantanamo Bay.

    We have lost the propaganda war, and we have to make sure we don’t lose the war. But I am telling you, these five rogue justices, who lie about the law, who lie about precedent, and who lie about what they’re up to, expose our armed forces on the battlefield to extraordinary danger. And they expose you and me to extraordinary danger. Because let us remember the reason why Guantanamo is where it is is so that when we capture these terrorists on the battlefield, we can interrogate them, and find out what they know, about their hierarchy, about their strategies, about the potential next attack, and we’ve gotten extremely useful information in many cases. And we keep them there to keep them off the battlefield.

    This is not part of the criminal justice system. We’re not interested in prosecuting them under our criminal laws. We’re interested in survival, and protecting the American soldier and the American people at a time of war. Every president has done this. Every single one. And when the reporters write “It’s a blow against George Bush or the Bush administration,” they are lying through they’re teeth. They are propagandists, spewing the talking points of the enemy. And when Supreme Court justices, who are extremely intelligent people, know better, and sit down with pen in hand, and rewrite the law, and pretend the precedent doesn’t say what it says, because they want to advance the cause of the ACLU, and the Marxist lawyers who represent these terrorists, shame on them.

    Bravo, Mark. Bravo!

  15. Bob,Esq:

    “What principle empowers the Fed to predicate its expanded powers upon a non-declared war against a gerund form of a verb, tactic or state of mind?

    I remember being scolded by English teachers for expressing, in sentences, such nonsensical thoughts.”

    The late Harry Reasoner of ABC News used to warn about the government’s manipulation of language and hence our liberties. Funny almost none of the new corporate shills masquerading as journalists talk about that anymore. As usual, Harry was prescient. War on terror, indeed. We’ might as well have a war on poverty. Oh yeah we did that already. How’d that turn out?

  16. Ah Scalia…

    If only you weren’t so intellectually dishonest and morally bankrupt, you could have been the greatest legal mind of the 18th century.

  17. far enough: ‘“Scalia says that this decision will cost American lives. When I told my wife of his comment, she said, “Not as many as Bush v. Gore.”’


    Vincent Bugliosi: “In yet another piece of incriminating circumstantial evidence, Scalia, in granting Bush’s application for the stay, wrote that “the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner [Bush] has a substantial probability of success.” But Antonin, why would you believe this when neither side had submitted written briefs yet (they were due the following day, Sunday, by 4 pm), nor had there even been oral arguments (set for 11 am on Monday)? It wouldn’t be because you had already made up your mind on what you were determined to do, come hell or high water, would it? Antonin, take it from an experienced prosecutor–you’re as guilty as sin. In my prosecutorial days, I’ve had some worthy opponents. You wouldn’t be one of them. Your guilt is so obvious that if I thought more of you I’d feel constrained to blush for you.”

  18. “Nothing can bring you peace but the triumph of principles.”

    What principle empowers the Fed to predicate its expanded powers upon a non-declared war against a gerund form of a verb, tactic or state of mind?

    I remember being scolded by English teachers for expressing, in sentences, such nonsensical thoughts.

Comments are closed.