Six and a half years ago, we at the Center for Constitutional Rights brought the first case in federal court on behalf of detainees held at Guantanamo. At first, the administration successfully argued that the detainees were in a legal black hole, without any right of access to the federal courts to challenge whether they were lawfully held. Two years later, the Supreme Court ruled that our clients' cases could go forward, but Congress attempted to overturn the decision with a pair of statutes, the Detainee Treatment Act and the Military Commissions Act.
Today, the Supreme Court ruled that the part of the Military Commissions Act that attempted to block the federal courts from hearing the claims of our clients at Guantánamo was unconstitutional.
Justice Kennedy, the opinion's author, has a reputation for pragmatism, and it shows in today's opinion, which is rooted in a sound practical sense. The decision today allows courts to do what they do best: to decide whether the government has the right to hold someone in detention, sorting out claims of factual innocence by weighing the evidence.
What will the next steps be? We hope that the lower courts will quickly move to hold hearings in the 200-odd pending individual habeas corpus cases where detainees are challenging their indefinite detention without charges. Of the roughly 770 men held at Guantánamo since the base opened, over 500 have been released; under 20 have been charged. The military says it will only charge up to 80 with offenses to be tried by military commission. That leaves almost 200 men who the government has no intention of ever charging; without today's decision they might have remained in detention forever without ever having a real chance to argue for their release before an impartial court. With habeas you never would have had these men - so many of whom have been officially cleared for release by the military - locked up and abused because no court was watching. We believe the majority of them will be released once the executive is forced to show up in front of a federal judge and justify their detention with hard evidence.
What will the implications be for the pending military commissions cases? I suspect the impact will be minimal. It is likely those trials will continue to progress at their current halting pace. Today's opinion only means that the defendants in those commissions proceedings - the handful of men charged so far - may commence parallel proceedings arguing that they shouldn't have ever been detained in the first place.
Other significant issues may be litigated as well: most detainees are being held in solitary confinement, including dozens who are cleared for release; most are losing their minds as a result. In habeas we should be able to argue for more humane conditions of confinement. Many detainees are cleared for release to countries where they may face torture; these men are basically in the position of refugees and countries that can offer them asylum will have to be found before they can be released. They may also be able to stop the government from transferring them to places that torture by raising appropriate legal claims through the vehicle of habeas.
Major General Jay Hood, commander at Guantanamo, admitted to the Wall Street Journal that "[s]ometimes we just didn't get the right folks," but innocents remain at the base because "[n]obody wants to be the one to sign the release papers. ... there's no muscle in the system." The federal courts are supposed to be that muscle. Today's decision ensures that they will be.
Ultimately, the administration's strategy with Guantanamo was to run out the clock and leave its mess - much like the war in Iraq - to the next president to clean up. Today's decision - a historic victory for executive accountability to the courts - will, we hope, prevent this administration from doing so.
--June 12, 2008