Supreme Court: Gitmo Detainees Have Rights Under Constitution (UPDATED)

From reports heard, a United States Supreme Court 5-4 ruling says that the POWs at Guantanamo Bay have the rights of habeas corpus just like any US citizen and should be tried in US civilian courts. It is a 5-4 decision with the expected split along ideological lines; Justice Kennedy wrote the majority opinion. The decision is being characterized as

the Bush [administration's] third setback at the high court since 2004 over its treatment of prisoners who are being held indefinitely and without charges at the U.S. naval base in Cuba.

It's not merely a setback for the Administration, silly Associated Press, but for all of us and the earthly forces that keep us safe here and abroad.

I have to step out, but by the time I get back, there should be a bit more blog commentary on the ruling and I'll post some of it in an update.

UPDATE: Lots of places to go at this point to see what conservatives think, lawyers or not.

But first, to the horse’s mouth. SCOTUSblog has the opinion (.pdf).

From Justice Scalia’s dissent:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other Constitutional protections as well). It blatantly misdescribes [sic] important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today. I dissent.

Emphasis mine.

Adler at Volokh:

As I (super-quickly) skim Justice Kennedy's opinion for the Court, it appears to hold that Guantanamo detainees have habeas rights, that these rights can only be denied through a valid suspension of habeas rights (under the Suspension Clause of the Constitution), that the procedures created by the Detainee Treatment Act were not an adequate substitute for habeas, and therefore Section 7 of the Military Commission Act is an unconstitutional suspension of the detainees' habeas rights.

Houston at Stop the ACLU:

[This decision] doesn’t “help” the murderers and terrorists get habeas corpus, or find rights, it will kill them on the battlefield. What battlefield commander will waste his time trying to figure out what rights the terrorist he is facing has or doesn’t have?

Mac Ranger:

For credit reference the next attack on America, cite Kennedy, Souter, Ginsberg and Stevens, who decided today to rewrite the constitution decide that terrorists have the same rights as Americans.

Malkin:

Chief Justice John Roberts says the rule of law and the American people have lost out–and with this ruling, we “lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.”

A sample of the Left side of opinion from Hardin Smith at FireDogLake:

This is an enormous rebuke to the Bush Administration and their supporters who rammed the MCA forward, and a repudiation of their attempts to override the rule of law on fear tactics and power grabs.

And Levin at the Corner:

[I]f POWs have access to our civilian courts, how do our courts plan to handle the thousands, if not tens of thousands of cases, that will be brought to them in future conflicts?
It has been the objective of the left-wing bar to fight aspects of this war in our courtrooms, where it knew it would have a decent chance at victory. So complete is the Court's disregard for the Constitution and even its own precedent now that anything is possible. [snip]

I fear for my country.

(Thanks to Instapundit, Hot Air and Memeorandum)

Comments

[Phelps]

Actually, it says that they have habeas rights, not that they are entitled a trial in US courts. They have the right to say, "I'm being wrongly detained, show my under what authority you can hold me" and the state has to respond. That's really all a habeas hearing is.

I'm pretty sure that, "you are a non-US citizen captured in a combat zone engaging in combat actions against US forces" will be a sufficient argument for 95% of the people in Gitmo to pass this standard.

[timb]

How do you a Afghan dirt farmer is a terrorist if he’s never had a hearing?

Taking the government’s word for who a terrorist is and who isn’t, when the government has released almost 400 people from Gitmo without charges seems to be placing a lot of credibility and power to that government. Seems to me our Founders thought differently about government power.

Plus, a phelps, helpfully points out, Federal judges are unlikely to release anyone unless the government's case is egregiously poor. Think they want to be the judge who let Mohammad Atta go?

This case champions all of our rights, as proved by Mark levin's opposition.

Here's a hint about the law: it's generally not on Levin's side, which is probably why he's been Sean Hannity's caddy since the Reagan administration

[DarkStar]

I don't understand all of the law behind this, but as best I can tell, They have the right to say, "I'm being wrongly detained, show my under what authority you can hold me" and the state has to respond. That's really all a habeas hearing is. sums it up nicely.

I know I don't like it, but I don't know enough law to say it was legally right or wrong.

[David Blue]

On the good side, Roberts and Alito have not "grown in office" like David Hackett Souter. Not yet. Maybe never.

Four good judges out of five doesn't cut it, but it means that a majority on the court is just one president away, if that president is dedicated and fights brilliantly and is lucky in who he picks.

If John McCain is good enough - which I doubt, but if - then one more push and you won't see very bad decisions like this again for a while.

[Rachel]

These five who gave the ok to allow non-citizens rights of habeaus corpus are the same five who decided on Kelo v. New London, isn't it?

[baldilocks]

Rachel,

Without looking it up, I'm saying yes.

[David Blue]

Kelo:

"Joining Stevens in the majority were Justices Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, and David H. Souter. Kennedy filed a concurring opinion. Justice Sandra Day O’Connor’s dissenting opinion was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas. Thomas also wrote a dissenting opinion."

Source: SCOTUS Blog (link)

So it seems the government has broad powers to seize private property (especially their homes) from poorer Americans and transfer it to wealthier ones (those who can pay more takes and put up a "development plan" which they need not then stick to), but not to confine foreigners outside American territory without benefit of habeas corpus. The same judges have written both positions into the American constitution.

[timb]

I guess I just see your concern. The writ of habeas is mentioned in the text of the Constitution (not an Amendment, mind you) AND the means for suspending it (invasion or rebellion). The Supreme Court long ago determined that the rights of the Constitution extend to anyone under the dominion of the US. The MCA and the Bush plan were unconstitutional and the fact that four dullards couldn't see that is more scary than some Afghan getting to claim he's not the right Abdul Traiq, but he's an Abdul Tariq from a different village.

All this means is the US govt has to show why they think a person's a terrorist.

Oh well, righties believe everything the President says for another 7 months. Suddenly, on 1/21/09, they will remember the President can lie and they will be complaining at every turn (I'm remembering Hannity saying Clinton couldn't bomb Kosovo, but Bush could do whatever he wanted.