On June 29, 2007, in an extremely rare move, the United States Supreme Court reversed its own earlier ruling and agreed to consider whether a law passed by Congress, the Military Commissions Act of 2006, can legally deny detainees at Guantanamo Bay access to civilian courts. While this is only a decision to accept the case and cannot be read as an indication of the manner in which the court will ultimately rule, the move is consistent with the court’s recent scrutiny of the detention policies used by the Bush administration in its “war on terror.”
This case is of particular significance because it will determine whether the detainees have a constitutional right to the remedy of habeas corpus. The remedy, one of the most fundamental guarantees under the Anglo-American legal system, allows an individual to test in a civilian court the legality of his or her detention or imprisonment. A habeas corpus proceeding does not determine guilt or innocence, but ensures that a person is deprived of his or her liberty only in accordance with established legal principles and processes. Since its origin in medieval England, habeas corpus has served as an important means of checking abuses of authority and has been embraced by diverse legal systems throughout the world.
History and Context
Last year, in the wake of Supreme Court rulings that the president did not have the authority to authorize military commissions to try detainees without congressional approval and that the remedy of habeas corpus was available to detainees, Republicans in Congress introduced legislation aimed at overcoming both of these rulings. The Military Commissions Act of 2006, signed into law on Oct. 17 of that year, authorizes the establishment of military commissions to try alien “unlawful enemy combatants” and sets forth procedures for doing so. Among its provisions, this law purports to deny federal civilian courts jurisdiction to hear an application for a writ of habeas corpus filed by an alien classified as an “unlawful enemy combatant” or awaiting such classification.
While the law does provide for appellate review by a newly created Court of Military Commission Review and, eventually, the Supreme Court, such review takes place only after trial by a military commission is completed. No trials have yet been held under the Military Commissions Act; charges against detainees in the first two cases under the new act were dismissed for technical reasons in early June. Keeping in mind that some detainees have already been held without trial for over five years, without access to habeas corpus it could take additional years before even the first cases would be subjected to any review by a civilian court under the terms of the act. In the meantime, the act prevents detainees from challenging the legality of their present detention.
It is perhaps a testament to the importance of habeas corpus that a group of detainees is using a habeas corpus proceeding—the very proceeding the act seeks to take away—to ask a civilian court to decide whether the act does in fact shut them out of civilian courts.
The key issue in this current challenge is whether Congress can constitutionally deny civilian courts jurisdiction to hear habeas corpus applications from persons designated “unlawful enemy combatants.” The detainees originally filed their habeas corpus petition in the U.S. District Court for the District of Columbia prior to passage of the Military Commissions Act. That court ruled against them in 2005 based on then-existing law. While the case was before the Court of Appeals for the District of Columbia Circuit, the new act came into effect; and that court was called on to decide whether it was constitutional. The Court of Appeals held that the Military Commissions Act did not violate the constitutional guarantee of habeas corpus and that the detainees, as aliens held outside the country, did not have the right to invoke constitutional guarantees.
Initially, in April 2007, the Supreme Court declined to review the case (named Boumediene v. Bush after one of the detainees) citing the need for detainees first to exhaust the remedies available to them under the Military Commissions Act. On June 29, however, the court granted a petition for rehearing filed by the detainees. The court’s reversal of its own decision is without precedent in recent decades, according to experts. While no specific reason was cited in the court’s order, it is speculated that the June 22 submission of an affidavit by a military intelligence officer criticizing the workings of the secretive military commissions may be part of the reason for the court’s unusual reversal. Although the contents of the affidavit are not yet known, an attorney for the detainees described it as showing the military commission process to be a “sham.”
An Enforceable Right?
When it finally hears the case in its next term, the Supreme Court will consider whether the Military Commissions Act violates the right to habeas corpus guaranteed by the U.S. Constitution. The Constitution, however, does not affirmatively guarantee the remedy of habeas corpus; rather, Article I, Section 9, provides that the writ “shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Thus, as in past habeas corpus cases, the court will attempt to interpret the meaning of the so-called suspension clause, determine the scope of its protections in 1789, when the first federal courts were created, and analyze the right of detainees to invoke constitutional guarantees.
A much clearer, affirmative statement of the right to habeas corpus, however, exists in United States law, in Article 9, Section 4, of the International Covenant on Civil and Political Rights, ratified by the United States in 1992. This provision states:
Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
The habeas corpus guarantee in the international covenant applies to all persons deprived of their liberty, not just criminal defendants, and it is applicable in cases of preventative detention. And unlike the constitutional provision, the covenant has been understood by the United Nations Human Rights Committee (now the Human Rights Council) to prohibit suspension of habeas corpus in times of emergency because of its importance in protecting other fundamental rights. As a treaty signed by the president and ratified by the Senate, the provisions of the covenant are part of “the supreme law of the land” in the United States.
Unfortunately for the detainees, they cannot rely on the covenant in their case before the Supreme Court, because upon ratifying the covenant, the United States declared that the treaty was “not self-executing.” In simple terms, this declaration means that in the United States the covenant does not create enforceable rights that an individual can assert in court. Rather, it creates obligations on the government vis-à-vis other members of the international community.
While the habeas corpus guarantee in the covenant may thus seem irrelevant because of the lack of a judicial enforcement mechanism, such a view is short-sighted. The fact is that the United States, along with more than 150 other nations, has voluntarily, by ratifying the covenant, accepted the legal obligation to provide access to habeas corpus proceedings. Although judicial enforcement is not available, pressure to comply with international law obligations can be applied through diplomatic channels. The covenant itself provides a mechanism for a state-party to the convention to challenge the failure of another state-party to comply with its obligations. Upon ratifying the convention, the United States declared that it accepted the competence of the Human Rights Committee to receive and consider such communications.
In addition, compliance with the covenant guarantee can be effected through the domestic political process. The Senate Judiciary Committee, now under the control of Democrats, approved a bill in early June that would restore the habeas corpus right to Guantanamo Bay detainees. Certainly the fact that the United States already has an obligation to provide access to habeas corpus pursuant to the covenant should be brought to bear as this legislation is considered by the full Senate.
Habeas corpus has long been a cornerstone of the Anglo-American legal system and is now enshrined in nearly two-thirds of written constitutions worldwide. Restoration of this right to detainees at Guantanamo Bay would not only bring the United States into compliance with its international law obligations, but would also mark a significant victory for the rule of law.
