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06-12-08 Nation-Supreme Court Deals Death Blow to Gitmo by J

06-12-08 Nation-Supreme Court Deals Death Blow to Gitmo by J

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Published by Mark Welkie

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Published by: Mark Welkie on Mar 13, 2011
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June 12, 2008
Supreme Court Deals Death Blow to Gitmo
By
Jonathan Hafetz
Today's ruling by the Supreme Court in
Boumediene v. Bush
delivered a dramaticblow to the President's lawless detention policies and overturned an effort by theprevious Congress to eliminate the centuries-old right of habeas corpus. The rulingmeans that prisoners at the US military base at Guantanámo Bay, who have beenheld for more than six years without charge, will finally have the opportunity tochallenge the accusations against them in a court of law. More broadly, the rulingrejects the premise on which Guantánamo is based: that the President can create alawless enclave simply by incarcerating people outside the mainland United States.
Boumediene
marks the culmination of the quest for due process that began in 2002,when the first habeas corpus petitions were filed by Guantánamo detainees in federalcourt. In 2004, the Supreme Court ruled in
Rasul v. Bush
that the detainees had aright to habeas corpus under a statute that dated to the nation's founding. TheAdministration, however, then sought to block any of the cases from going forward,arguing that the detainees had no rights to enforce beyond filing a piece of papercalled "habeas corpus" and that any rights they did have were satisfied by thesummary military proceedings it had hastily put in place after the Supreme Court'sdecision.Congress, in turn, twice tried to eliminate habeas rights for detainees. The SupremeCourt rejected the first attempt in 2006, ruling in
Hamdan v. Rumsfeld 
that thelegislation did not apply to pending cases. So Congress tried again with the MilitaryCommissions Act of 2006 (MCA), which made explicit that the elimination of habeasrights applied to all Guantánamo cases, past, present and future. The issue beforethe Supreme Court in
Boumediene
was whether the MCA violated the constitutionalguarantee of habeas corpus, known as the "Suspension Clause."The first question the Court addressed in
Boumediene
was whether the Guantánamodetainees had a right to habeas corpus. The Administration had argued that becausethe prisoners were foreign nationals held outside the sovereign territory of the UnitedStates, they had no rights under the Constitution. As a result, the President andCongress were free to deny them any access to the courts at all.The Supreme Court rejected this argument in no uncertain terms. As Justice AnthonyM. Kennedy explained in his 5-4 opinion for the Court, formal constructs like"sovereignty" do not and cannot dictate the presence or absence of constitutionalrights because they are "subject to manipulation by those whose power it is designedto restrain."
Boumediene
thus sounded a death-knell to the idea of Guantánamo itself: that thePresident can imprison people indefinitely without court review simply by bringingthem to a US enclave on an island in the Caribbean. Instead, Kennedy's opinionadopts a more flexible and pragmatic approach under which the Constitution'sapplicability to those beyond America's shores depends on a practical assessment of the circumstances. And under that approach, the application of fundamental

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