Mon, Jul 12, 2004 - Page 9 News List

America's Founding Fathers ride to the rescue once again

By Conor Gearty  /  THE GUARDIAN , LONDON

The US Supreme Court's two rulings that terrorist suspects held at Guantanamo Bay and in America must have access to the US 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 toward restoring the credibility both of the judiciary in the minds of the American 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 which this very same court effectively appointed nearly four years ago when it stopped the Florida vote recount.

In the first of the two cases, two Australian and 12 Kuwaiti citizens challenged their detention in Guantanamo following 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 versus 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 Guantanamo cases on, despite such clear authority -- the first sign that events in the courtroom were spinning out of the Bush administration's 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: the citizens in the current case were from countries not at war with the US; they had denied being engaged in or plotting acts of aggression against the US; they had never been afforded access to any tribunal, much less been charged with and convicted of any wrongdoing; and 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 reasons for agreeing with the majority.

Why did the Supreme Court, in the apt words of Scalia, who is 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"?

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