This is a travesty of justice. (PDF of Decision)
In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.
The Court stressed that it was not ruling that the detainees are entitled to be released — that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that “we do not address whether the President has authority to detain” individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba; that, too, it said, is to be considered first by the District judges.
The Court also declared that detainees do not have to go through the special civilian court review process that Congress created in 2005, since that is not an adequate substitute for habeas rights. The Court refused to interpret the Detainee Treatment Act — as the Bush Administration had suggested — to include enough legal protection to make it an adequate replacement for habeas. Congress, it concluded, unconstitutionally suspended the writ in enacting that Act.
Justice Anthony M. Kennedy’s opinion for the majority in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196) was an almost rhapsodic review of the history of the Great Writ. The Suspension Clause, he wrote, “protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty.” Those who wrote the Constitution, he added, “deemed the writ to be an essential mechanism in the separation-of-powers scheme.”
and in another post:
At first glance, it would appear that although the decision is momentous, there are other important things that it does not do:
It does not speak to whether GTMO should be closed (although it basically undermines the Administration’s principal reason for using GTMO in the first place, which was to keep the courts from reviewing the legality of the Executive’s conduct).
Nor does it affect, in any dramatic sense, possible military commission trials — with the important exception that it invites the defendants in those trials to raise constitutional defenses, such as under the Ex Post Facto Clause.
I predict the ruling will result in more deaths of terrorists on the battlefield rather than risk a costly court battle where the foreigner can drain taxpayer funds for court proceedings. Also, will the soldiers be expected to Mirandize terrorists before taking them into custody?
Let this also be a reminder of one of the three most important things to consider about this Presidential Election (1) Judges; (2) Judges; and (3) Judges.
What kind of Judges will Barack Obama appoint?
What kind of Judges will John McCain appoint?
In my opinion, there is no choice. Obama will appoint Marxists, and McCain will not.
This ruling is a setback in allowing us to effectively fight World War IV.