Boumediene v. Bush
In its ruling on Boumediene v. Bush, on June 12, the Supreme Court decided 5 to 4 to grant the writ of habeas corpus to detainees being held at the naval station in Guantanamo Bay, Cuba, even though they have been designated enemy combatants and they are being held outside of the territorial United States. This means that some detainees can challenge their detention in federal court.
What is controversial about this decision is that the Supreme Court had to rule unconstitutional aspects of an act of Congress, the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA). The Court ruled that, contrary to the DTA, the so-called combat status review tribunals are not sufficient substitutes for habeas corpus, and that, contrary to the MCA, Guantanamo detainees are entitled to the writ.
The Court's decision hinged on the fact that the detainees were being held at Guantanamo. Because, the Court argued, Guantanamo is under de facto U.S. control, and has been for over 100 years, the Constitution has power there. This draws on case law going back to the Spanish American war, when, for instance, the Court ruled that residents of Hawaii were entitled to Constitutional rights even though the islands had not yet officially become a territory of the United States. Because the Guantanamo detainees were held within the purveiw of the Constitution, the Court held, they are entitled to its protection.
This is as opposed to prisoners of war who were captured, for example, during World War II and held in German prisons. Because they were being held outside of the territorial United States, on land that the U.S. was occupying for only a short time, the prisoners were not entitled to any rights afforded by the United States Constitution.
The German prisoners were, however, entitled to rights under international treaties of war, such as the Geneva Convention of 1929. They were not tortured, they were given honor and respect befitting their rank, they could communicate with their families and, under the Nuremberg Charter, if they were to be charged with a crime they were given public trials at which they could face the evidence brought against them.
These are all rights that the Bush Administration has denied prisoners held not only in Guantanamo but also in prisons in Iraq, Afghanistan, and around the world. The prisoners at Guantanamo will now get their day in court, but what about all the others who have the misfortune to be held in territories that are not under permanent US control, out beyond the ken of our Constitution? The government has argued that, because they are not "lawful combatants," they do not deserve protection under Geneva. So, they are left with no legally enforceable rights. They are disrespected, hidden from their families, tortured and denied the opportunity to come before a judge. The Constitution does not extend to these prisoners, and a case can be made that Geneva does not, either. But the jurisdiction of justice and respect for human dignity has no limit. The US government should voluntarily offer these prisoners their basic rights, but, barring that, an international -- or, perhaps, global -- law should be crafted that would guarantee them.
What is controversial about this decision is that the Supreme Court had to rule unconstitutional aspects of an act of Congress, the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA). The Court ruled that, contrary to the DTA, the so-called combat status review tribunals are not sufficient substitutes for habeas corpus, and that, contrary to the MCA, Guantanamo detainees are entitled to the writ.
The Court's decision hinged on the fact that the detainees were being held at Guantanamo. Because, the Court argued, Guantanamo is under de facto U.S. control, and has been for over 100 years, the Constitution has power there. This draws on case law going back to the Spanish American war, when, for instance, the Court ruled that residents of Hawaii were entitled to Constitutional rights even though the islands had not yet officially become a territory of the United States. Because the Guantanamo detainees were held within the purveiw of the Constitution, the Court held, they are entitled to its protection.
This is as opposed to prisoners of war who were captured, for example, during World War II and held in German prisons. Because they were being held outside of the territorial United States, on land that the U.S. was occupying for only a short time, the prisoners were not entitled to any rights afforded by the United States Constitution.
The German prisoners were, however, entitled to rights under international treaties of war, such as the Geneva Convention of 1929. They were not tortured, they were given honor and respect befitting their rank, they could communicate with their families and, under the Nuremberg Charter, if they were to be charged with a crime they were given public trials at which they could face the evidence brought against them.
These are all rights that the Bush Administration has denied prisoners held not only in Guantanamo but also in prisons in Iraq, Afghanistan, and around the world. The prisoners at Guantanamo will now get their day in court, but what about all the others who have the misfortune to be held in territories that are not under permanent US control, out beyond the ken of our Constitution? The government has argued that, because they are not "lawful combatants," they do not deserve protection under Geneva. So, they are left with no legally enforceable rights. They are disrespected, hidden from their families, tortured and denied the opportunity to come before a judge. The Constitution does not extend to these prisoners, and a case can be made that Geneva does not, either. But the jurisdiction of justice and respect for human dignity has no limit. The US government should voluntarily offer these prisoners their basic rights, but, barring that, an international -- or, perhaps, global -- law should be crafted that would guarantee them.
Labels: Guantanamo, law, policy
posted by Brian at 6:03 PM
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