Worldview Commentary No. 288 on Chicago Public Radio, 91.5 FM WBEZ

Author: Susan Good

“The Supreme Court: Guarding the Constitution at Guantanamo”

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One of the most important lessons of centuries of Anglo-American legal history is that the power of the Executive to arrest and imprison people must be subject to the check of review by an independent and impartial court. In the quaint Latin phrase used by lawyers, that judicial check is called habeas corpus. Under this time-honored procedure, courts review whether a detention is lawful and, if it is not, order the prisoner’s release.

Last week, in the Boumediene case involving prisoners at Guantanamo, the Supreme Court – albeit by the slimmest of margins – once again repelled a threat to this essential bulwark of liberty. In a 5-4 decision written by Justice Anthony Kennedy, the majority rejected the government claim that foreign prisoners at Guantanamo have no rights at all under the United States Constitution, including the right to habeas corpus. The majority then also rejected the government’s second claim: that even if Guantanamo prisoners are entitled to habeas, a short-cut alternative procedure is an adequate substitute.

In short, the majority rejected both government proposals for prisoners at Guantanamo: no rule of law, or half-baked rule of law.

The dissenters objected on three main grounds. Most stridently, after castigating the majority for supposedly entering into military matters beyond its competence, Justice Antonin Scalia offered his own military judgment: allowing habeas for prisoners at Guantanamo “will make the war harder on us. It will almost certainly cause more Americans to be killed.”

Lieutenant Scalia’s second argument was more within his expertise: habeas was not historically available for foreign citizens imprisoned outside the US. The majority agreed that the historical precedents are “not dispositive.” But Guantanamo, it noted, lies outside the US only in a formal sense: “by virtue of its complete jurisdiction and control,” the US “maintains de facto sovereignty” over Guantanamo. And as a matter of separation of powers, the Executive should not be allowed to bargain away the Bill of Rights simply by agreeing to reserve formal sovereignty over a territory to another country, even while maintaining complete US sovereignty de facto.

Chief Justice John Roberts wrote a separate opinion arguing the dissenters’ third point: habeas is not constitutionally required at Guantanamo, because Congress created an alternative mechanism for judicial review of detentions at Guantanamo, which provides an adequate substitute for habeas.

Justice Roberts’ opinion displays the wit and rhetorical flair that made him, as a lawyer, one of the most successful advocates before the Supreme Court. But if the Chief Justice has ever confronted the realities of trial work in a courtroom, his elegantly styled opinion does not show it.

The review mechanism created by Congress consists of two steps. First, a panel of military officers decides whether a prisoner is in fact an “enemy combatant.” At this stage, the prisoner has no lawyer – only a US military officer who acts as his “personal representative,” but who owes him no duty of confidentiality. The panel may decide on the basis of hearsay, or based on secret evidence not disclosed to the prisoner, or even on the basis of secret hearsay.

The second stage is judicial review by the federal court of appeals in Washington. But this review is limited to whether the military panel followed its own rules, and whether those rules are lawful.

The majority rightly ruled that this shortcut review is no substitute for the historic safeguard of habeas corpus. The military proceedings are “closed and accusatorial.” They pose “considerable risk of error.” Subsequent judicial review should therefore be more searching, not less, than in the typical habeas case, in which a federal court reviews a state court decision reached after a full, open, adversarial trial.

Yet even assuming that the court of appeals under the congressional scheme could review the military findings of fact – a matter open to doubt – the majority noted that the court can review only evidence presented to the military panel (or, perhaps, possessed by the government). If a prisoner at Guantanamo, with no lawyer and no way to communicate outside the prison, is unable to track down a witness who could vouch for his innocence at the military hearing, he cannot later present that witness to the court.

The majority’s concern was not limited to procedural shortcomings. Two members of the majority — Justices Kennedy and Stevens – originally voted against the Supreme Court’s taking the case, so long as it was still before the court of appeals under the congressional scheme. Only after reports of improper command influence on the military panels became public, did at least one of them cast the fourth vote needed for the Court to hear the case.

The majority opinion, prudently, did not directly question the integrity of the military proceedings. But its concern was evident. Judicial review of executive detentions, wrote Justice Kennedy, must be less deferential than review of criminal convictions rendered “after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence.”

Four years earlier, in the Hamdi case, four justices had suggested that a hearing before a military tribunal could suffice to determine whether an American citizen was an enemy combatant. Recalling this, the Chief Justice accused the majority of a constitutional “bait and switch,” for now rejecting a military tribunal. But the statement in Hamdi was made before the Court could observe the actual operation of the military panels. It was also made in a context – a case involving a US citizen — where subsequent judicial review by means of habeas corpus was assuredly available.

The Court’s ruling is narrow but historic. These are not easy times. A wise Court must continue to serve as the guardian of enduring constitutional values, even when politicians run for cover.

Doug Cassel’s commentaries are generally broadcast Wednesdays during the noon hour of the Worldview program on Chicago Public Radio, 91.5 FM, and rebroadcast at 9 PM in the evening. Views expressed are personal views of the author and not necessarily those of Notre Dame Law School, the Center for Civil and Human Rights or Chicago Public Radio.