Mon, Jul 12, 2004 page9

• America's Founding Fathers ride to the rescue once again

  • By Conor Gearty / THE GUARDIAN
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  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"?

  The first explanation probably lies in how extreme and egregious the administration's policy was, cutting the judiciary out completely in a way that was far worse than what had happened even after World War II, and in the process making no concessions whatsoever to even the modest concerns of mainstream judicial opinion.

  In the Hamdi ruling, decided at the same time as the Guantanamo case, the majority of judges saw off the administration's claim to be able to hold "enemy combatant" US citizens indefinitely and without any due process. This time the majority was eight to one, with the usually reliably conservative Scalia, incongruously joined by the liberal Stevens, penning a remarkable and eloquent attack on administration policy. Only a patent political lackey on the bench could go as far as the executive demanded, and it is part of the wider ineptitude of the Bush presidency that it forced its friends into such a corner. When only former president George Bush appointee Clarence Thomas is on your side, you know you are in deep trouble.

  Second, and perhaps in these cases even more importantly, lurking in the shadows thrown by the legal analysis of the issues was the horror of Abu Ghraib. In the US, even strong supporters of the war on terrorism, and indeed of the Bush presidency, have been shocked by what the policy of torture, now clearly seen to have been instigated at the highest levels of the administration, says about the claim to hold people beyond the reach of the law. It no longer seems such a mystery why the authorities have been so keen to keep their prisoners from even a modicum of independent oversight. American legal culture, in the form of these Supreme Court justices, is not remotely near being so craven as to allow such conditions to continue, and unlike the state department and the decent mainstream military, by a happy quirk of constitutional history it can actually do something about it.

  Third, there is the increasingly evident emptiness of Bush's self-declared "war on terrorism." Of course the justices recognized that there have been atrocities and that they continue to occur, need to be prevented and, when they happen, to be punished. But to secure counter-terrorism powers on the basis of fighting a war is to require oneself to be disciplined by (as the court's opinion in the Hamdi case put it) an "understanding" which must be "based on long-standing law-of-war principles." Delivering that opinion, Justice Sandra Day O'Connor added a very significant rider: "If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel." True, speaking for the court, O'Connor then immediately added, "But that is not the situation we face as of this date," but the Bush team has been warned. This blank check may be about to bounce.

  These two judgments represent an important benchmark in the fight against executive excess that has been initiated in the US and has also been evident in the UK. It has always been quite wrong to equate the plight of the detainees under the UK's Anti-terrorism, Crime and Security Act with those held in Guantanamo, but that does not mean that their detention without trial on an indefinite basis is not wholly wrong. It remains as cruel, unnecessary and as dangerous now as it was when first introduced.

  The alleged need for such effective internment was exposed by a coruscating report from a committee of distinguished UK politicians at the end of last year. Perhaps emboldened by this report, the special court charged with overseeing the UK's detention system has begun to flex its muscles.

  In October the whole discriminatory basis of Britain's detention system, allowing only foreign nationals to be held but exempting the rest of us, will finally come to be reviewed by the UK's House of Lords for compatibility with the Human Rights Act. As in the US, the UK's post-Sept. 11 anti-terrorism laws lapse: in Britain it will be in November 2006. In the absence of a sharp upsurge in terrorist violence, there is room for cautious hope that the principles of civil liberties and respect for human rights have some moral mileage left in them.

  The last word deserves to be left with the US Supreme Court from its judgment on Hamdi delivered by one its most conservative members, O'Connor: "It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

  Conor Gearty is professor of human rights law and director of the Center for the Study of Human Rights at the London School of Economics
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