Will the decision of the US Supreme Court to uphold habeas corpus mark a lasting return to the rule of law in US domestic and international policy, asks Ahmad Naguib Roushdy*
On 12 June 2008 the US Supreme Court issued its third decision rebuking the Bush administration for its treatment of detainees at the Guantanamo Bay prison facility in Cuba. Since 11 September, President George W Bush, implementing an agenda championed by his neo-conservative backers since the late 1990s, has near eliminated civil liberties and human dignity in the United States -- ironically what the US has accused Al-Qaeda, the Taliban and its other supposed enemies of doing. Yet, in Boumediene v Bush, the Supreme Court ruled five to four that detainees in Guantanamo had the right to challenge their detention before US federal courts. Guantanamo Bay prison holds 270 detainees, nearly 100 from Yemen, many having been in custody for more than six years. Some 36 of them joined petitioner Boumediene in appealing to the Supreme Court for redress.
There is no doubt that the 11 September 2001 incidents caught the US and the world by surprise and shocked the American system. For America, the attack was comparable to the Japanese attack on Pearl Harbour in December 1941. The incidents were also comparable to Hitler's blitz on London in the early days of World War II, when the German Luftwaffe surprised an irresponsibly unprepared British Royal Air Force, destroying most of its aircraft on the ground. President Bush's reaction to 11 September was brutal. Although he denied that his evangelical education taught him that Islam was the number one enemy of America, his response clearly targeted Islam and Arabs. After the collapse of the Soviet Union, Islam replaced communism as an obstacle to American world supremacy. Bush invaded Afghanistan to punish the Taliban for harbouring Al-Qaeda before he invaded Iraq to topple Saddam Hussein.
In this two-edged military response, American troops and the CIA arrested a large number of Afghanis, Iraqis and Muslims from different Arab countries, including Saudi Arabia, Egypt and Yemen. They herded prisoners into Guantanamo Bay, Abu Ghraib in Iraq and secret CIA prisons in Europe. They detained them indefinitely, denying them their due process rights that are guaranteed by the US constitution. Treated like animals, detainees were subject to torture and abuse, regularly gagged, bound, hooded, beaten, while some of them died as a result. Others committed suicide as a means of escape. Most were made to suffer physical and psychological assault and sexual humiliation.
The judicial guarantee afforded to prisoners giving them the right to challenge the reasons of their detention without charge is enshrined in the habeas corpus writ of the first article of the US constitution. It provides that, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." The right of habeas corpus is among the first human rights codified in law. Adopted by English common law, the writ was a centrepiece of the Magna Charta promulgated in 1215. Reinforced by the British parliament in the Habeas Corpus Act of 1679, Blackstone, the prominent jurist, habeas corpus as "stable bulwark of our liberties". The act was credited by the US Supreme Court in its 12 June ruling as indeed it was central to the framers of the US constitution, suspicious of overly powerful government.
Based on the Habeas Corpus Act of 1679, the Juridical Act of 1779 and the US constitution, US federal courts were given jurisdiction to issue orders in habeas corpus writs. In examining the writ of habeas corpus, the federal court does not concern itself with the merits of the case -- whether the detainee is guilty or innocent, a matter that would be the concern of a court of competent jurisdiction. Rather, the federal court should ascertain whether the detainee has been denied due process of law. A detainee has the right to know why he was imprisoned, on what charges and why he is denied counsel. Federal courts are empowered to issue orders to those responsible for the detention obliging them to justify their actions and guarantee detainee rights. Due process requires that prisoners should not be detained indefinitely, but be charged or be released, afforded the right to consult with a lawyer of his or her choice, and that the government should present the case to a neutral court to decide on its merits.
Guantanamo Bay was converted to a prison by the US government six years ago to detain foreign terrorist suspects captured in Afghanistan and Iraq or elsewhere. Most classified as dangerous, some were designated "enemy combatants". The government acted on advice of the US Department of Justice that the US law would not reach Guantanamo because it officially is in a foreign land. The American government used that argument in the 2004 Rasul v Bush case before the Supreme Court. This argument, in principle, is in harmony with internationally recognised territorial limits to law. The Supreme Court, however, rejected the government's argument, ruling that Guantanamo, although in a foreign land, is leased to the US and that the US government has full unilateral control over it, making it an extension of the United States. As such, US federal courts could hear habeas corpus petitions from detainees at the facility.
Richard A Epstein, law professor at the University of Chicago, though in concurrence with the court ruling, criticised the court for using geographical reasoning to justify its ruling. The question, he said, was not that the United States maintained complete control over Guantanamo, but rather that habeas corpus applied to all persons, citizens and aliens, wherever they were. More to the point, however, was the fact that the Supreme Court in two unrelated rulings decided that habeas corpus procedures were not necessary if Congress provided an adequate substitute that reserved the right of detainees to challenge their detention. By this the court, although confirming its own precedents, presented the Bush administration with a fruitful loophole allowing it to exploit and continue distorting the law.
Indeed, Bush has always claimed as absolute his right as commander-in-chief to decide on the status of detainees and prisoners of war regardless of international humanitarian law. Bush's former secretary of justice, Attorney- General Alberto Gonzales, expounded that the war on terror was different from wars covered by the Geneva Conventions. The Pentagon declared in July 2004 that it would establish military review tribunals -- panels of military officers to examine the status of detainees who contested their designation by the president as enemy combatants. In November 2005, the Supreme Court agreed to hear an appeal from a Yemeni detainee, one of six selected to be tried before a military tribunal. That was a blow to President Bush, leading him to press his Republican majority in Congress to approve the Detainee Treatment Act of 2005, establishing Combatant Status Review Panels to designate detainees as enemy combatants.
At that time it was not clear whether the new law that was to apply to future cases, according the rule of non- retroactivity of criminal law, would also apply to pending cases. In June 2006, the Supreme Court, in Hamdan v Rumsfeld, decided to retain its jurisdiction over pending cases, ruling that military review commissions were improperly established in not being authorised by Congress. In reality that was not the point, as military tribunals cannot be said to replace due process and habeas corpus rights. In effect, Congress had no power to authorise the president to establish military commissions for this purpose. Nonetheless, Republicans in Congress, joined by frightened Democrats, agreed to enact the Military Commissions Act of 2006 under the belief that they were giving the president the necessary missing authorisation, stripping federal courts of jurisdiction over pending cases as well as new cases. In June 2007, however, the Court of Appeals in Washington decided that the Military Commissions Act stripped detainees of the right to habeas corpus. It was this ruling that was the subject of the Supreme Court review on 12 June this year.
Boumediene v Bush, and the Supreme Court ruling, has swatted back -- now for the third time -- President Bush's authoritarian leanings, or as The New York Times said in its 13 June editorial, "his imperial overreaching", the Supreme Court stating that the administration's creation of military commissions were not an adequate substitute for habeas corpus proceedings in federal courts. The ruling is a major victory for civil liberties, and was hailed by politicians, writers and professors of law, and by Democrats led by Senator Barack Obama. President Bush expressed unhappiness with the ruling. Justice Antonin Scalia, a conservative and staunch backer of Bush, said in his dissenting opinion that the ruling would have "devastating" and "disastrous consequences". He said that the decision would "almost certainly cause more Americans to be killed". But Justice Antonio Kennedy, who wrote the majority opinion, addressed Justice Scalia's concern when he said, "the laws and the constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law."
Given the political considerations attendant to appointing US Supreme Court justices, there is a possibility that the Supreme Court may change its mind and reverse its decision in Boumediene v Bush and in other related habeas corpus cases. If a vacancy opens in the Supreme Court before President Bush leaves office in January 2009, he will nominate a conservative candidate to fill it. Senator John McCain, the Republican presidential candidate, would almost certainly do the same. McCain, who was a prisoner of war and was tortured in Vietnam, already expressed discontent with the recent Supreme Court ruling, saying it was one of the worst decisions in the history of the United States.
On the side of civil liberties advocacy, the 12 June Supreme Court decision will not change the mood among many lawyers and rights groups that Guantanamo Bay prison should be closed. On the contrary, the decision gave new impetus to their argument. Even Robert Gates, US defence secretary, expressed to Congress his regret with the continuation of that prison, saying that the government was stuck in Guantanamo. His problem was in finding a substitute, especially for detainees that might be charged with war crimes and are considered too dangerous to release. Detainees who win cases of habeas corpus in trial when the government cannot present charges against them are obliged to be released -- in each case a defeat for Bush.
Resentment to US foreign policy remains strong and calls for democracy in the Middle East appear hypocritical in the context of waning liberties in the United States. That does not mean that people under authoritarian regimes do not want democracy or freedom; only they reject American democracy as a tool of Western colonialism and they want to be free of America. The next US president can do good service to his country and the world if he works to restore all democratic and constitutional protections in the United States before trying to democratise others. But it will not be easy to mend what Bush destroyed during his eight-year tenure.
* The writer is an international lawyer.