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A Blow Against Gitmo | The Nation

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A Blow Against Gitmo

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More than six years after the first prisoners were brought to Guantánamo--bound, gagged and blindfolded--the Supreme Court has declared that they have a constitutional right to challenge the legality of their detention in federal court. The decision, issued June 12, handed the Bush Administration its most profound defeat yet in the legal "war on terror" and gave the rule of law its greatest victory. No detainee will be immediately released; the Court ruled only that the courthouse door is constitutionally open. But the decision means that, once and for all, Guantánamo is no longer a "law-free zone."

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David Cole
David Cole
David Cole (@DavidColeGtown), The Nation's legal affairs correspondent, is the author, most recently, of The Torture...

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In ruling that police may not search cellphones without a warrant, the Court brought the Fourth Amendment into the twenty-first century.

That was when the Bureau of Investigation—the forerunner of today’s FBI—first opened a file on the magazine.

As the four dissenting Justices loudly proclaimed, the decision in Boumediene v. Bush was truly groundbreaking. For the first time in its history, the Supreme Court declared unconstitutional a law enacted by Congress and signed by the President on an issue of military policy in a time of armed conflict. For the first time the Court extended constitutional protections to noncitizens outside US territory during wartime.

As recently as 2001 the Court had stated--without reasoning--that the Constitution was of no solace to foreign nationals outside our borders. And for only the third time in its history, the Court declared unconstitutional a federal law restricting federal court jurisdiction. The Court has consistently sought to avoid such confrontations, because the political branches' control of the Court's jurisdiction is seen as conferring democratic legitimacy on an unelected institution.

But in another way, the decision was not unprecedented. It vindicated the right to a "writ of habeas corpus," an ancient form of judicial remedy that dates back to the Magna Carta, and guarantees prisoners the right to challenge the legality of their detentions in court. And the decision also fits comfortably with an important transnational trend of recent years, in which courts of last resort have played an increasingly aggressive role in invalidating security measures that trench on individual rights. The Law Lords in Britain, the Supreme Courts of Canada and Israel, and the Constitutional Court of Germany have all issued major decisions in recent years restricting political prerogative on issues of terrorism and national security in the name of individual rights.

At issue in Boumediene was whether habeas corpus, guaranteed in the Constitution, extends to foreign nationals held at Guantánamo. In 2004 the Court ruled in its first Guantánamo case, Rasul v. Bush, that a federal statute granting habeas review extended to Guantánamo. But that decision was superseded when, in the Military Commissions Act, a Republican-majority Congress did George W. Bush's bidding and sought to strip the courts of habeas jurisdiction over detainees' claims. As a result, the Court in Boumediene was confronted with the question of whether Guantánamo detainees have a constitutional right to habeas corpus--that is, one that cannot be taken away unless Congress suspends the writ in times of "rebellion or invasion."

The difference between a constitutional and a statutory decision may seem technical, but it is in fact profound. The Court's decision in Rasul, that habeas was available as a statutory matter, simply required an interpretation of a statute and left Congress free to respond, as it did, by changing the law. The Boumediene decision, by contrast, required the Court to thwart the will of the President and Congress acting together and to do so on constitutional grounds, which are far less susceptible to a political override.

That the Court was willing to go as far as it did is due largely to Guantánamo's having become the symbol of the Administration's hostility to the rule of law in its "war on terror." Courts, judges and prominent jurists around the world have condemned Guantánamo. In May Canada's Supreme Court unanimously ruled that Canadian officials had to disclose evidence obtained from a Canadian detained there, resting its decision squarely on the proposition that the Guantánamo detentions were unlawful. The prison camp has become such an international embarrassment that Bush, Defense Secretary Robert Gates, Secretary of State Condoleezza Rice and both presumptive presidential candidates have said they would like to see it closed.

Boumediene was ultimately about the role that law and courts should play in the "war on terror." We should celebrate that the Supreme Court stood up to an Administration that has effectively declared war on the very heart of what the Court itself is about--the rule of law. But the case was decided by a single vote, underscoring how critical the next election will be for the future of constitutional law in this country.

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