SCOTUS: Gitmo Detainees Have Constitutional Habeas Rights

MSNBC just flashed the report that in a 5-4 decision, the Supreme Court just ruled that the detainees in Guantanamo have a constitutional right to habeas corpus. Apparently, the Supreme Court agreed with me and disagreed with the DC Circuit Court of Appeals.


Justice Anthony Kennedy, writing for the court, said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." . . . In dissent, Chief Justice John Roberts criticized his colleagues for striking down what he called "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

More to come when I read the opinion . I want to compare it to my prior analysis. [More...]

From the syllabus:

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.
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    Whew. (5.00 / 4) (#1)
    by No Blood for Hubris on Thu Jun 12, 2008 at 09:20:05 AM EST
    So, like, when can we have our whole Constitution back again?

    Yes (none / 0) (#54)
    by votenic on Thu Jun 12, 2008 at 10:29:49 AM EST
    Well, after Hillary dropping out and subtle hints about joining Barack, who's to stop them? how can one get more votes than the dedicated Hillary and Barack Supporters? Combined?

    You assume.... (none / 0) (#56)
    by kdog on Thu Jun 12, 2008 at 10:59:53 AM EST
    the Dems want to restore our civil liberties to their former glory.  I make no such assumptions...the last Democratic president had a fairly abysmal civil liberties record.

    If we want unfettered liberty, we need some monkeywrenches elected to the executive and the senate.


    Bill did appoint decent justices (5.00 / 1) (#75)
    by riddlerandy on Thu Jun 12, 2008 at 03:11:56 PM EST
    It does make a difference who has that power.  Do you want someone making appointments who voted for Alito and Roberts, or someone who voted against them?  

    Well (none / 0) (#67)
    by Claw on Thu Jun 12, 2008 at 12:06:57 PM EST
    I'm sure McCain would do just great.  He is, after all, a maverick.

    WOW! (5.00 / 1) (#2)
    by madamab on Thu Jun 12, 2008 at 09:23:51 AM EST
    Does this ruling supersede the Military Commissions Act and the Patriot Act? It seems like it would...

    It declares part of the MCA and DTA (5.00 / 4) (#51)
    by scribe on Thu Jun 12, 2008 at 10:21:31 AM EST
     - those parts which purport to strip jurisdiction from the Courts to hear any claim (other than whether the military commissions complied with the rules set down by the Sec'y of Defense) - to be unconstitutional because the writ of habeas corpus was not (and, per the Constitution's text could not have been) properly suspended.

    It also reaffirms the Court's central role in determining what the law is - i.e., Marbury v. Madison.  Lurking behind all the Unitary Executive and "judicial modesty" bullcrap has been, since minute one, an attack on the role of the Courts as enunciated in Marbury - "to say what the law is".  Every one of Bushie's signing statements, decisions that he can waive or not enforce or disobey laws, etc., is predicated, at its core, on his being able to say what the law is, rather than having to let the Courts decide.  Remember, too, how he was deciding what the law is in the context of the secret memoranda Yoo wrote - how his Article II powers trumped all others, how he could define the limits of his Article II powers, and how no one could challenge his definition of Article II powers (Sen. Whitehouse spoke about this a lot) - this opinion throws all of that into the trash where it belongs.

    This is one of the most important decisions in the last 50 years - maybe even since the New Deal cases of the '30s.

    Your Republic survived by one vote.  See how important it is that McSame lose?


    Great news (5.00 / 1) (#61)
    by mmc9431 on Thu Jun 12, 2008 at 11:32:06 AM EST
    If this decision does stop the signing statements and all the over reach of power by the executive branch, it is the best news I heard in a long time. Hupefully this will be a major topic of discussion by the media and candidates. I would really like to hear from them on their opinions regarding these subjects. Throughout the primary season this topic has been conspicuous in it's absense. Most of the major problems we have faced in the last 7 yrs have come from the abuse of power of the executive branch and yet it was touched on.

    Man, Is Cheney Gonna Be Pissed! (5.00 / 3) (#3)
    by creeper on Thu Jun 12, 2008 at 09:26:11 AM EST
    What do they think they're doing?!?  How dare they apply the law over what he wants?

    He is The Fourth Branch!!!1111 (5.00 / 4) (#24)
    by madamab on Thu Jun 12, 2008 at 09:41:37 AM EST
    Obey His Laws, or he will take you on a hunting trip!

    666th branch imo. (5.00 / 4) (#34)
    by Faust on Thu Jun 12, 2008 at 09:52:11 AM EST
    And this is one way to spread (5.00 / 2) (#43)
    by zfran on Thu Jun 12, 2008 at 10:09:04 AM EST
    the hope of democracy around the world. Idealalistic point of view, but our system works when applied properly.

    Accortding to him and his ilk (5.00 / 1) (#76)
    by riddlerandy on Thu Jun 12, 2008 at 03:13:11 PM EST
    the other branches have just as much right to determine what is constitutional and binding as the SCOTUS.  See signing statements et al.

    Fantastic news. (5.00 / 3) (#5)
    by Same As It Ever Was on Thu Jun 12, 2008 at 09:27:27 AM EST
    This should make for fascinating reading.

    NICE! (5.00 / 12) (#6)
    by andgarden on Thu Jun 12, 2008 at 09:27:41 AM EST
    This is the kind of decision that proves we have to win in November. 5/4 is precarious for a decision like this.

    Couldn't agree more. (5.00 / 4) (#16)
    by indy in sc on Thu Jun 12, 2008 at 09:37:37 AM EST
    People focus so much on Roe, but it's not the only thing that may come before the SCOTUS.

    Congress could have prevented this, too, (5.00 / 3) (#19)
    by pie on Thu Jun 12, 2008 at 09:39:31 AM EST
    you know.

    Maybe (5.00 / 1) (#30)
    by Steve M on Thu Jun 12, 2008 at 09:45:00 AM EST
    The Court ruled that the Detainee Treatment Act was an unconstitutional suspension of the writ of habeas corpus.  In theory, a different statute could be drafted that would suspend the writ in a constitutional way, but it would have to provide a more constitutionally satisfactory procedure than the DTA.  So it's not as if Congress merely neglected to say a few magic words.

    Not sure (5.00 / 1) (#39)
    by pie on Thu Jun 12, 2008 at 09:56:47 AM EST
    I'm getting what you're saying.  Congress could have rejected the whole thing.

    What whole thing? (5.00 / 1) (#50)
    by Steve M on Thu Jun 12, 2008 at 10:17:45 AM EST
    Habeas corpus is a constitutional right.  Congress doesn't have the power to just throw it out if it feels like it.

    I get that. (5.00 / 2) (#53)
    by pie on Thu Jun 12, 2008 at 10:26:49 AM EST
    But it voted for the DTA, correct?  

    And it was ruled unconstitutional.  I'm saying Congress shouldn't have passed it in the first place.


    Yes (none / 0) (#63)
    by Gabriel on Thu Jun 12, 2008 at 11:38:55 AM EST
    But Obama as president ensures no Alito-like SC nominees while McCain ensures the opposite.

    We hope--but recall Obama wanted to vote for (5.00 / 1) (#69)
    by jawbone on Thu Jun 12, 2008 at 12:52:41 PM EST
    Roberts--brilliant legal mind, etc.  

    Took a his chief of staff to remind him of the political consequences of such a vote--and perhaps even the Constitutional ramifications of Roberts. I can't be sure of the latter, however; the first is acknowledged fact.

    Voters: Do you know where your candidate actually stands on issues?


    Two separate things (none / 0) (#74)
    by Gabriel on Thu Jun 12, 2008 at 01:10:12 PM EST
    The Senate tends to defer to the President on SC nominees. Even if Obama had voted for Roberts it tells us nothing of the kind of justices he would nominate.

    I've been saying that for awhile (5.00 / 2) (#25)
    by Molly Bloom on Thu Jun 12, 2008 at 09:42:15 AM EST
    Roberts is the prototype of nominee if McCain wins. Nothing to criticize in his history and impeccable credentials.

    Look, the (5.00 / 5) (#26)
    by pie on Thu Jun 12, 2008 at 09:43:10 AM EST
    dems approved him, too.

    No Kidding! (5.00 / 1) (#31)
    by Molly Bloom on Thu Jun 12, 2008 at 09:50:28 AM EST
     Nothing to criticize in his history and impeccable credentials.

    This may shock you, but politically speaking no party can afford to  refuse a nominee to the Supreme Court without some valid reason.

    I would submit, "he has impeccable credentials, but we can't find anything to criticize" is not  a sufficient reason. "We think he is too conservative" isn't going to be a good reason either, at least without evidence he is a flaming Bork.


    But not Obama (none / 0) (#40)
    by indy in sc on Thu Jun 12, 2008 at 09:58:11 AM EST
    One of the McCain camp's talking points against Obama being "too liberal" is that he voted against the confirmation of Roberts and how could anyone possibly object to Roberts unless they were being solely partisan.

    Yes you can vote against a nominee (5.00 / 1) (#44)
    by Molly Bloom on Thu Jun 12, 2008 at 10:09:26 AM EST
    but to get a majority to vote against a nominee is an uphill task. Even if you do reject one nominee, how many nominees can be rejected, before you are forced to accept one- before the backlash over a permanent vacancy? And do you want to set that sort of precedent?

    The GOP has had 12 picks to Democrats 2 since 1968. If you want to change that it will take time.

    There are no liberals on the court anymore (notwithstanding the NY Times characterization that this ruling is by the court liberals). There are moderates 4-5 on any given issue. If you want to change the court, you will need Democratic presidents getting picks. A landslide would help as well, because the old adage, the court follows the elections has a grain truth, both because a president does get to appoint the replacements and because the court is usually careful about getting too far ahead of the electorate.


    Agreed. (5.00 / 1) (#46)
    by indy in sc on Thu Jun 12, 2008 at 10:13:20 AM EST
    I was only pointing out that the "dems voted for him too" comment by pie doesn't apply to Obama. Without a Dem to nominate judges, more Roberts types will be appointed.

    And you gave me a platform to rant! (5.00 / 1) (#48)
    by Molly Bloom on Thu Jun 12, 2008 at 10:14:55 AM EST
    He voted against him (5.00 / 1) (#52)
    by pie on Thu Jun 12, 2008 at 10:24:44 AM EST
    before he voted for him.

    Voting for Obama (5.00 / 1) (#55)
    by Molly Bloom on Thu Jun 12, 2008 at 10:41:46 AM EST
    Voting for Obama- or any Democratic nominee for that matter - is better than being the "house" in a game of blackjack. The odds are much in your favor. It is not like buying lotto tickets.

    This is why I eventually decided, given their respective positions, I would vote for the nominee, regardless.


    Talk Is Cheap (none / 0) (#57)
    by squeaky on Thu Jun 12, 2008 at 11:03:12 AM EST
    And so are promises. Voting is where it counts, and that is the thing we measure Pols by, or at least one of the most important things.

    only when they are close, or against the party (5.00 / 1) (#78)
    by boredmpa on Thu Jun 12, 2008 at 06:07:23 PM EST
    Voting records, to me, can be pretty useless because  pols often know where things are going ahead of time.  As such a vote is frequently either part of the party line or possibly a pander/talking point.

    To me, looking at votes against the party line or better yet at cases where the senator/rep has led on an issue (introduced a bill over multiple sessions, filibustered, lobbied behind closed doors for months, whatever) are the strongest ways to judge leadership potential and actual interest/advocacy for an issue.

    Especially since you can always kill something in senate/rep conference, not fund it adequately, or  vote for it knowing it's going to fail.  Vote against it knowing it will succeed, etc.  And if you're dealing with amendments, it's even more complex.


    And Obama was going to vote (5.00 / 1) (#45)
    by zfran on Thu Jun 12, 2008 at 10:10:50 AM EST
    for Roberts appt. until he was taken aside and talked out of it. So don't be so sure of what sort of judges will be appointed. Congress still has to approve the choice(s)!  

    Absolutely (5.00 / 1) (#35)
    by ruffian on Thu Jun 12, 2008 at 09:54:02 AM EST
    This is the first glimmer of hope in a long time. If we win in November we have a chance to safeguard the Constitution for a generation.

    3rd SCOTUS setback for BushCo (5.00 / 4) (#7)
    by jawbone on Thu Jun 12, 2008 at 09:29:33 AM EST
    Libs joined by Kennedy and he wrote the decision. Whoooohoooo!

    Now, still not clear about hearings.

    John Roberts (5.00 / 2) (#8)
    by pie on Thu Jun 12, 2008 at 09:32:25 AM EST

    I must say.... (5.00 / 6) (#15)
    by kdog on Thu Jun 12, 2008 at 09:36:41 AM EST
    this is a most pleasant surprise.

    Habeas rights should be afforded to every human being on earth.

    Hmmmm. (5.00 / 3) (#17)
    by pie on Thu Jun 12, 2008 at 09:38:24 AM EST
    Habeas rights should be afforded to every human being on earth.

    Yes.  Yes, they should.

    /looks accusingly at those in Congress who don't "get it"


    Yes (5.00 / 2) (#38)
    by cannondaddy on Thu Jun 12, 2008 at 09:55:46 AM EST
    Not a right of a citizen but the unalienable right of everyone.

    Yes (none / 0) (#37)
    by cannondaddy on Thu Jun 12, 2008 at 09:55:45 AM EST
    Not a right of a citizen but the unalienable right of everyone.

    Interesting (5.00 / 6) (#22)
    by Steve M on Thu Jun 12, 2008 at 09:40:34 AM EST
    The Court rejects the notion that the Government can avoid a habeas corpus proceeding by holding the detainees at Guantanamo rather than a domestic site, because the United States has total control over Guantanamo even though it disclaims de jure sovereignty.

    However, if the Government really wants to abrogate habeas corpus that badly, it would seem there are still plenty of options.  The writ does not extend to Abu Ghraib, or to Eastern European prisons for that matter.

    This opinion represents an important step towards making Guantanamo Bay into something other than a shameful black hole.

    Haven't read the opinion of course, but (5.00 / 2) (#28)
    by Joelarama on Thu Jun 12, 2008 at 09:43:20 AM EST
    if it's based on custody by the U.S. rather than location, it might indeed extend to some of these other prisons.  Particularly the reported floating prisons, which would presumably be 100% U.S. controlled.

    Plays havoc (5.00 / 4) (#27)
    by mmc9431 on Thu Jun 12, 2008 at 09:43:16 AM EST
    With administrations plans to parade all the GITMO convictions out before the election. But it also is ammo for their push to rid the courts of those lefty extremists! (I just don't think anyone in this country will agree with them that the SCOTUS is a lefty haven).

    Justice Kennedy (5.00 / 1) (#32)
    by democrat1 on Thu Jun 12, 2008 at 09:51:19 AM EST
    Now and then he wakes up and try to save this country. I wish he does always and especially in 2000

    Kennedy's blind side seems to concern women's (none / 0) (#70)
    by jawbone on Thu Jun 12, 2008 at 12:56:51 PM EST
    issues. Those frail beings which must be watched over the powerful Daddy figures. Grrrrrrr. Soooo emotional! Must be protected from every regretting certain decisions. Even if it means they may never be able to bear another child. There's always more women were the damaged one came from....

    Kennedy likes the limelight (none / 0) (#77)
    by riddlerandy on Thu Jun 12, 2008 at 03:15:05 PM EST
    of being the decider

    That 5-4 majority is awfully thin (5.00 / 2) (#41)
    by Baal on Thu Jun 12, 2008 at 09:58:17 AM EST
    and one of the 5 is an 87-year old man.

    Something to think about this November.

    Just Five to Four? (5.00 / 4) (#42)
    by Mouthful of Politics on Thu Jun 12, 2008 at 10:05:50 AM EST
    I find it astounding that the right to habeas corpus even needs to be debated. And four justices voted against. Unreal.

    Interesting that so many of these conservative viewpoints are reminiscent of life in the Soviet Union. Widening power for the executive branch, the ability to monitor all private sector communications without oversight, removing habeas corpus...

    It's interesting that Republicans often point the finger across the aisle to call the other side socialists.

    I agree, but... (5.00 / 2) (#49)
    by madamab on Thu Jun 12, 2008 at 10:16:22 AM EST
    we ARE socialists, to a degree, if we believe in the New Deal. Unless we admit that and say, "So what - it works in Sweden," we won't make much progress against the corruption of laissez-faire capitalism.

    Going too far in the direction of socialism (left) or corporatism (right) gets you fascism. Fascism is what BushCheney stands for, IMHO. We need more lefty (socialist) influence to pull the country back to the more sensible center.

    (Sorry if OT.)


    I don't think they ever truly (none / 0) (#64)
    by gyrfalcon on Thu Jun 12, 2008 at 11:48:01 AM EST
    objected in their heart of hearts to the authoritarianism itself, when it came right down to it.  They just wanted different policies enforced-- ie, an authoritarian social Darwinist state, not an authoritarian "everybody gets food, housing and health care whether they work or not" state.

    Authoritarianism-pretty similar on right or left (none / 0) (#71)
    by jawbone on Thu Jun 12, 2008 at 12:59:50 PM EST
    And just as scary.

    But the Repubs worked extremely hard to bring along like-thinking lawyers, named them to important judicial posts early in their careers--and made sure they were True Believers.

    Dems do not do the same sort of thing--it's anathema to most Dems. But...does "seeing the light" change that?


    Brilliant (5.00 / 5) (#47)
    by Stellaaa on Thu Jun 12, 2008 at 10:14:40 AM EST
    This is how you advertise democracy to the world.  There are laws and you abide by them, even for your enemies.  

    If you want to be scared... (5.00 / 7) (#59)
    by ItsGreg on Thu Jun 12, 2008 at 11:26:52 AM EST
    ...read Justice Scalia's dissent. He writes: 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.

    That's right, Scalia apparently believes that giving the detainees in Guantanamo fundamental habeas protection will result in Americans being killed. I suppose if the detainees were granted, say, the right to see the evidence against them or confront their accuser, all of the continental U.S. would burst into flame.

    Scalia also said this: The Nation will live to regret what the Court has done today. Maybe. But not nearly so much as we should regret ever letting Scalia sit on the Supreme Court.

    Astonishing to me for a justice to write. (5.00 / 3) (#60)
    by wurman on Thu Jun 12, 2008 at 11:29:55 AM EST
    Chief Justice Roberts, direct quotation: Boumediene v. Bush, p. 20
    If this is the most the Court can muster, the ice beneath its feet is thin indeed. As noted, the CSRT procedures provide ample opportunity for detainees to introduce exculpatory evidence whether documentary in nature or from live witnesses--before the military tribunals.

    "Thin ice," indeed, from the boss about his court.  It's so dismissive & irrelevant.

    I really had no idea that this guy was such a blazing jerk.  And it really bugs me to think that there may be decades of this drivel based on nonsensical ad hominem statements--sophomoric.

    Does Roberts even have a clue (none / 0) (#65)
    by gyrfalcon on Thu Jun 12, 2008 at 11:50:05 AM EST
    how those tribunals were set up?  "Ample opportunity"?  Is he nuts or just willfully ignorant?

    These dissents are mind boggling. (none / 0) (#66)
    by wurman on Thu Jun 12, 2008 at 12:02:44 PM EST
    I've not read a Supreme Court decision since Fall of 1968 in an advanced PoliSci class.

    It is amazing that Roberts & Scalia managed to actually graduate from a law school (or, perhaps, even enter one), pass a bar examination, be appointed as a judge & then get on the SCOTUS.  Their writing is utterly & demonstrably similar to the verbal pronouncements of people such as George W. Bu$h xliii, Rove, Cheney, etc.  They are nasty, dismissive of their peers & totally lacking in simple decorum or courtesy.  And neither of them can even follow the thread & the history of a citation.

    The very simple fact that the USA, especially the Dept. of Defense, has de facto control of Guantanamo is beyond the understandings of both Roberts & Scalia--& there's a lease & history as a territory & as a post-war Spanish concession  & legal precedents.  What buffoons!

    I can't imagine that US senators did not read opinions written by these judges (prior to their confirmation hearings) & easily determine that they are really not very skilled jurists.  How very sad.


    I seriously doubt (none / 0) (#68)
    by mmc9431 on Thu Jun 12, 2008 at 12:14:38 PM EST
    that Bush was looking for a true Constitutional scholar when he made the appts. He wanted a true party follower. Someone, (as with Yoo), who would twist the law to justify their agenda. The test of the new court may come when a Democratic Congress and Executive branch are in power. We'll see how they interpret laws then.

    Scalia was always an outlier legally, but Roberts (none / 0) (#72)
    by jawbone on Thu Jun 12, 2008 at 01:04:22 PM EST
    played a very careful game of Manchurian Candidate: He was inculcated in the NeoCon's conservative doctrine, but was extremely careful to have no paper trail which could really nail him for the anti-habeas, anti-Magna Carta, anti-Constitution as we know jurist.

    He used the same "I know nothing" kind of approach to confirmation as Thomas did--and was practically worshipped. Alito, as shown in today's vote, is of the same mold. They have their variations, but they are True Believers.l

    A Dem president is going to have a very diffcult court to work with on any ground-breaking legislation.

    Ought to be interesting.


    Wch conservative went 4 the Consitution and Habeas (none / 0) (#4)
    by jawbone on Thu Jun 12, 2008 at 09:26:48 AM EST
    This is really good news--of course, the language may be very important.

    WNYC just saying something about it: just a tease.

    Hasn't Kennedy been voting (none / 0) (#9)
    by pie on Thu Jun 12, 2008 at 09:33:18 AM EST
    with the Opus Dei tribe lately?

    Yes, he as, esp'ly on women's issues (freedoms) (none / 0) (#73)
    by jawbone on Thu Jun 12, 2008 at 01:05:02 PM EST
    Hey BTD, it doesn't look like (none / 0) (#10)
    by andgarden on Thu Jun 12, 2008 at 09:33:31 AM EST
    you linked the right opinion. I can't find Kennedy's quote from the AP.

    Wrong link (5.00 / 1) (#12)
    by Big Tent Democrat on Thu Jun 12, 2008 at 09:34:57 AM EST
    Apparently not avaialble yet.

    Kennedy's opinion (5.00 / 3) (#23)
    by Steve M on Thu Jun 12, 2008 at 09:41:20 AM EST
    Third paragraph. (none / 0) (#11)
    by pie on Thu Jun 12, 2008 at 09:34:39 AM EST
    never mind. (none / 0) (#13)
    by pie on Thu Jun 12, 2008 at 09:36:12 AM EST
    Bad link? (none / 0) (#14)
    by wurman on Thu Jun 12, 2008 at 09:36:13 AM EST
    The PDF for SCOTUS Blog is Pimental.

    NYT (none / 0) (#18)
    by DFLer on Thu Jun 12, 2008 at 09:38:25 AM EST
    same link as BTDs AP (none / 0) (#20)
    by DFLer on Thu Jun 12, 2008 at 09:39:32 AM EST

    Glad to see the Court is keeping open (none / 0) (#21)
    by Joelarama on Thu Jun 12, 2008 at 09:40:28 AM EST
    the most minimal appeals route.  Of course, many of their rights are curtailed on Habeus.

    Great News (none / 0) (#29)
    by squeaky on Thu Jun 12, 2008 at 09:44:39 AM EST
    Although BushCo can now say that they were waiting for all these years for a ruling to start the kangaroo court show trials.

    All the headers (none / 0) (#33)
    by mmc9431 on Thu Jun 12, 2008 at 09:52:01 AM EST
    I've read specificly state GITMO. Does this mean it doesn'y apply to all our detainees? If so won't the admin just transfer them out to their other holding sites?

    Good news (none / 0) (#36)
    by esmense on Thu Jun 12, 2008 at 09:55:01 AM EST

    One judge away... (none / 0) (#58)
    by mike in dc on Thu Jun 12, 2008 at 11:16:18 AM EST
    ...from rubberstamping the modern conservative agenda.  Kennedy, Souter, Ginsburg, Breyer, Stevens...thanks for doing the right thing.  Please note the tenuousness of all this.

    Really? (none / 0) (#62)
    by QuakerInABasement on Thu Jun 12, 2008 at 11:36:24 AM EST
    Apparently, the Supreme Court agreed with me

    Did they cite you in their opinion?