The Supreme Court's 5-4 decision Thursday asserting that foreign terrorist suspects held at Guantánamo have an inherent constitutional right to challenge their detention in American courts marks a historic rebalancing of powers between the Executive, Congress and the judiciary one that many critics believe is a long overdue correction after years of Executive overreach by the Bush Administration. But the ruling's precise practical impact remains unclear and may be relatively slight on the military trials under way at Guantánamo.
"The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Justice Anthony M. Kennedy wrote for the majority in the case known as Boumediene v. Bush. "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,' " Kennedy added.
Justices John Paul Stevens, Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter joined Kennedy's opinion, against a conservative minority led by Chief Justice John G. Roberts Jr. as well as Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas.
The decision marked the fourth major legal defeat for the Bush Administration on the issue of rights for foreign detainees, as the court rejected arguments that protections provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 adequately safeguard the rights of prisoners designated "unlawful enemy combatants" by the Administration.
Speaking during the Rome stop of his European tour, President Bush responded, "We'll abide by the court's decision. That doesn't mean I have to agree with it."
Presidential candidate John McCain, a key author of the Military Commissions Act of 2006 that was overturned by the court, indicated he had not yet had time to scrutinize the ruling, but that "it obviously concerns me ... These are unlawful combatants; they're not American citizens."
Chief Justice Roberts criticized the majority for ruling unconstitutional "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." That, he continued, would open the majority to charges of "judicial activism."
Justice Scalia added that the U.S. is "at war with radical Islamists," and that the Boumediene ruling "will almost certainly cause more Americans to get killed." Scalia warned, "The nation will live to regret what the court has done today."
But civil libertarians, human rights activists and lawyers who have been challenging the Bush Administration's stance on Guantánamo for years hailed the Supreme Court decision as a major step forward. "The court has brought the Constitution home from exile," said Professor Eric M. Freedman, Maurice Deane Distinguished Professor of Constitutional Law at Hofstra and a longtime adviser to lawyers representing prisoners at Guantánamo. "Everyone who believes that America is a country devoted to the rule of law should celebrate because this ruling says that the Executive needs to be accountable to a neutral judicial forum in its decisions to imprison people and that is the basic restraint on tyranny that animated the American Revolution."
For all its historic significance, it remains to be seen what practical consequences the Supreme Court ruling will have. According to Shayana Kadidal, senior attorney at the Center for Constitutional Rights, a nonprofit whose lawyers serve as sole or joint counsel for more than 200 prisoners at Guantánamo, "The impact of this ruling on military commissions trying Khalid Sheikh Mohammed and others may very well be negligible, because federal courts have always been reluctant to stop trials, including military trials, in mid-process."
Those Guantánamo prisoners facing charges now, or in the future, will have the right to file their own habeas corpus petitions in U.S. courts, challenging the basis of their detention. But such challenges will probably proceed in parallel with their military-commission trials at Guantánamo, some of which are under way.
For approximately 190 prisoners at the base who are never expected to be charged, the ruling could bring a change. One-third of them have already been cleared for release but are being held until a country can be found to accept them. Roughly 50 are considered refugees, meaning they might face torture or other mistreatment if they are returned to their countries of origin. Others are still being held as a possible danger to the U.S., in case they decide to return to the battlefield. Lawyers for detainees in these categories are likely to file cases under the new ruling in the hope of speeding their release.
The Boumediene case takes its name from Lakhdar Boumediene, one of six Algerians who became legal residents of Bosnia in the 1990s. Bosnian police arrested them shortly after 9/11, fearing they might be plotting to attack the U.S. embassy in the country. Three months after that, the Supreme Court of Bosnia and Herzegovina ordered their release for lack of evidence. But no sooner were they free than police in Bosnia took them into custody and handed them off to the America military. From there, they ended up in Guantánamo.