The United States Supreme Court’s two rulings that terrorist suspects held at Guantanamo Bay and in the US must have access to the country’s courts are among the most remarkable in the long history of that famous institution.
The positive implications for the hundreds of internees held by the US across the world have yet to be clarified but will be immense. The chance to argue their cases is almost certain to lead to the release of hundreds of detainees. Already the habeas corpus applications have started to roll in, and the Bush administration seems at a loss as to what to do.
The rulings will go a long way towards restoring the credibility both of the judiciary in the minds of the US public and, more importantly, of the US system of government in the eyes of the world.
What the Supreme Court justices have said will make the shallow metaphor of an unending ”war on terror” far harder to sustain, and may even hasten the end of an administration that this very same court effectively appointed nearly four years ago when it stopped the Florida vote recount.
In the first of the two cases, brought in the names of Rasul and Al Odah, two Australian and 12 Kuwaiti citizens challenged their detention in Guantanamo after their capture abroad during hostilities between the US and the Taliban. Their attempt to challenge the legality of their detention before an independent tribunal and to obtain access to counsel floundered in the lower federal courts.
The reason was a Supreme Court decision from 1950 concerning German prisoners who had been captured and convicted of war crimes in China and had then been imprisoned in occupied Germany (Johnson v Eisentrager).
That case appeared to establish unequivocally that aliens detained outside the sovereign territory of the US may not make a habeas corpus application to try to secure their release. It must have been a shock to the administration when the Supreme Court even decided to take the Rasul and Al Odah cases on, despite such clear authority — the first sign that events in the courtroom were spinning out of control.
Delivering the court’s opinion — reflecting the votes of five of the nine justices — Justice John Paul Stevens made a point of distinguishing between the two situations:
l the citizens in the case before them were from countries not at war with the US;
l they had denied being engaged in or plotting acts of aggression against the US;
l they had never been afforded access to any tribunal, much less been charged with and convicted of any wrongdoing; and
l the territory in which they had been imprisoned was a place over which the US exercised exclusive jurisdiction and control.
To destroy the authority of Eisentrager without simply and crudely overruling it, Stevens had to engage in some characteristically nifty judicial trickery, finding a different basis for habeas corpus — one rooted in federal law rather than the Constitution — which the earlier case had not thought to explore. It was this reasoning that particularly inflamed the three dissenting Judges, William Rehnquist, Antonin Scalia and Clarence Thomas, and caused the ninth member of the Bench, Justice Anthony Kennedy, to set out his own, rather different reasons for agreeing with the majority.
Why did the Supreme Court, in the apt words of Scalia, Vice-President Dick Cheney’s shooting companion, spring ”a trap on the executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction — and thus making it a foolish place to have housed alien wartime detainees”?
The first explanation probably lies in quite how extreme and egregious the administration’s policy was, cutting the judiciary out completely in a way that was far worse than what had happened even after World War II, and in the process making no concessions whatsoever to even the modest concerns of mainstream judicial opinion.
In the Hamdi ruling, decided at the same time as the Guantanamo case, the majority of judges saw off the administration’s claim to be able to hold ”enemy combatant” US citizens indefinitely and without any due process. This time the majority was eight to one, with the usually reliably conservative Scalia, incongruously joined by the liberal Stevens, penning a remarkable and eloquent attack on administration policy. Only a patent political lackey on the Bench could go as far as the executive demanded, and it is part of the wider ineptitude of the Bush presidency that it forced its friends into such a corner. When only the George Bush Snr-appointee Clarence Thomas is on your side you know you are in deep trouble.
Second, and perhaps in these cases even more importantly, lurking in the shadows thrown by the legal analysis of the issues was the horror of Abu Ghraib. In the US, even strong supporters of the war on terrorism, and indeed of the Bush presidency, have been shocked by what the policy of torture, now clearly seen to have been instigated at the highest levels of the administration, says about the claim to hold people beyond the reach of the law. It no longer seems such a mystery why the authorities have been so keen to keep their prisoners from even a modicum of independent oversight. US legal culture, in the form of these Supreme Court justices, is not remotely near being so craven as to allow such conditions to continue, and unlike the State Department and the decent mainstream military, by a happy quirk of constitutional history it can actually do something about it.
Third, there is the increasingly evident emptiness of Bush’s self-declared ”war on terrorism”. Of course, the justices recognised that there have been atrocities and that they continue to occur, need to be prevented and, when they happen, to be punished. But to secure counter-terrorism powers on the basis of fighting a war is to require oneself to be disciplined by (as the court’s opinion in the Hamdi case put it) an ”understanding” that must be ”based on long-standing law-of-war principles”.
Delivering that opinion, Justice Sandra Day O’Connor then added a very significant rider: ”If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.” True, speaking for the court, O’Connor then immediately added, ”But that is not the situation we face as of this date,” but the Bush team has been warned.
This blank cheque may be about to bounce.
These two judgements represent an important benchmark in the fight back against executive excess that has been initiated in the US and has also been evident in the United Kingdom. It has always been quite wrong to equate the plight of the detainees under the UK’s Anti-terrorism, Crime and Security Act with those held in Guantanamo, but that does not mean that their detention without trial on an indefinite basis is not wholly wrong.
The last word deserves to be left with the US Supreme Court from its judgement on Hamdi delivered by one its most conservative members, O’Connor: ”It is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.” — Â