From Stephen Keim SC (pic)
The June 12 decision of the US Supreme Court in Boumediene v Bush has been, rightly, hailed as a severe political blow to the US President.
Importantly, the decision may provide real procedural relief to the successful petitioners and others who continue to be detained in Guantánamo Bay.
The decision of Justice Anthony Kennedy (72), and concurred in by Justices John Paul Stevens (89), David Souter (69), Ruth Bader Ginsburg (76) and Stephen Breyer (70) responds to the fact that four years have passed since the court found in Rasul v Bush that the writ of habeas corpus did extend to the military base at Guantánamo Bay – notwithstanding that, for strange historical reasons, the formal sovereignty of the land on which the base is built is Cuban.
Six years have passed since some of the petitioners had first been detained.
The decision also responds to the fact that present determinations about Guantánamo detainees may result in their continued detention for the period of hostilities, which may last a generation.
The further litigation that led to the Boumediebe decision was made necessary because of the attempt by congress to remove the right to habeas corpus relief for Guantánamo detainees by passing, first, the Detainee Treatment Act in 2005 and then the Military Commissions Act in 2006.
This legislation has been described by law lord Johan Steyn, among others, as trying to make Guantánamo a legal “black hole”.
Earlier the Detainee Treatment Act had been held not to have retrospective effect so as to apply to the then pending proceedings in Hamdan v Rumsfeld and the court declined to deal with the constitutional point at that time.
The decision in Boumediene reverses the effect of the MCA by declaring the habeas stripping provision unconstitutional.
The relevant provision of the US Constitution is called the Suspension Clause because it allows the government to suspend the availability of the writ in certain restricted circumstances of civil disorder, which was not applicable in this case.
The Suspension Clause is not part of the amendments which became the Bill of Rights in the US Constitution but, as this case shows, provides protection similar to a Bill of Rights.
In much the same way, s.75(v) of the Australian Constitution has operated as a mini-Bill of Rights, preventing the Howard Government’s attempts to prevent access to judicial review of immigration decisions – see Plaintiff 157 v Commonwealth.
The Boumediene decision will allow detainees to have the legality of their detention at Guantánamo Bay determined in the US federal courts.
This will allow the detainees to argue for a fairer and less restrictive process of determining whether they are enemy combatants than the Combat Status Review Tribunals established by the Detainee Treatment Act.
This will include challenging whether the congressional decision Authorising the Use of Military Force (the AUMF), passed after the attacks of September 11, 2001, also authorised the indefinite detention of “enemy combatants”.
Under the AUMF, the president is given power …
“to use all necessary and appropriate force to against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that took place on September 11 2001, or harbored, such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
The following facts appear from the case presented to the Supreme Court (see page three of the reasons):
“Interpreting the AUMF, the Department of Defense ordered the detention of these petitioners … Some of these individuals were apprehended on the battlefield in Afghanistan, others in places as far away as Bosnia and Gambia. All are foreign nationals, but none is a citizen of a nation now at war with the United States. Each denies he is a member of the al Qaeda network that carried out the September 11 attacks or the Taliban regime that provided sanctuary for al Qaeda.”
As a result of the decision, each of the petitioners in this case and other detainees who have been found to be enemy combatants can now seek to have their habeas corpus petitions heard before a US federal court.
They can seek to pursue evidentiary and procedural remedies that were not available to them before the Combat Status Review Tribunals.
They can test the correctness of the government’s interpretation of the AUMF so far as it relates to them.
Because the decision is on constitutional grounds, it cannot simply be overturned by new legislation.
However, as the minority reasons of Chief Justice John Roberts (54), and Justices Antonin Scalia (73), Clarence Thomas (61) and Samuel Alito (49) foreshadowed, there may be further extensive litigation before the details of the procedure available in the habeas process is settled.
The philosophy of the majority’s decision is reflected in the following passage (page 68):
“Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the nation’s present urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability to interdict. There are further considerations, however. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.”
The strategy of the Bush administration has been not to treat detainees as prisoners of war and to avoid the difficult work of charging detainees with criminal offences.
That strategy has stumbled through many cases and numerous pieces of legislation, presidential orders and Department of Defence directives.
This most recent decision is the latest step in the unravelling of the strategy to keep its detainees in its “war on terror” in a legal nether world.
While a blow for George Bush, the decision has greater importance for John McCain and Barack Obama. For it will be the task of one or other of them to attempt the task of restoring the rule of law to Guantánamo Bay and its detainees.
Stephen Keim SC