On June 12, 2008, the Supreme
Court ruled 5 - 4 in Boumediene v. Bush. It affirmed habeas rights for
Guantanamo detainees. It let them petition for release from lawlessly
Justice Anthony Kennedy wrote the majority opinion. He said America
maintains complete jurisdiction over Guantanamo regardless of its offshore
location. He opposed political branches "govern(ing) without legal restraint."
He expressed concerns about usurping "power to switch the Constitution
on or off at will." Doing so "lead(s) to a regime in which they, not
this Court, say 'what the law is.' "
"Even when the United States acts outside its borders, its powers are
not 'absolute and unlimited' but are subject 'to such restrictions as
are expressed in the Constitution."
He called habeas "an indispensable mechanism for monitoring the separation
"The test for determining (its) scope must not be subject to manipulation
by those whose power it is designed to restrain."
This bedrock right has no adequate substitute.
In Brown v. Vasquez (August 1991), the Ninth Circuit US Court of Appeals
"recognized the fact that (the) writ of habeas corpus is the fundamental
instrument for safeguarding individual freedom against arbitrary and
lawless state action...."
"Therefore, the writ must be administered with the initiative and flexibility
essential to insure that miscarriages of justice within its reach are
surfaced and corrected."
Habeas rights are fundamental. They date from the 1215 Magna Carta (the
Great Charter). They're universal. Boumediene v. Bush affirmed them.
On Monday, the Roberts court reversed its earlier ruling.
On June 11, the Supreme Court denied certiorati for seven Guantanamo
detainees. Doing so violated the Constitution's Article 1, Section 9,
Clause 2. It states:
"The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public safety may
Section 7(a) of the 2006 Military Commissions Act denied Guantanamo
detainees their fundamental habeas rights. Boumediene ruled otherwise.
So did Rasul v. Bush (June 2004). The Supreme Court held that Guantanamo
detainees may challenge their detention in civil court. In response,
Congress enacted the 2005 Detainee Treatment Act. It subverted the ruling.
In June 2006, the Court reacted. In Hamdan v. Rumsfeld, it held that
federal courts retain jurisdiction over habeas cases. Military commissions
lack "the power to proceed because (their) structures and procedures
violate both the Uniform Code of Military Justice and the four Geneva
In response, Congress passed the 2006 Military Commissions Act (MCA).
It granted extraordinary unconstitutional powers. Guantanamo detainees
lost all rights. It let presidents declare anyone (including US citizens)
"unlawful enemy combatant(s)."
The 2009 Military Commissions Act called them "unprivileged enemy belligerent(s)."
Language changed, not intent or lawlessness.
MCA grants sweeping police state powers. It states that "no court, justice,
or judge shall have jurisdiction to hear or consider any claim or cause
for action whatsoever....relating to the prosecution, trial, or judgment
of a military commission (including) challenges to (their) lawfulness...."
"Any person is punishable... who....aids, abets, counsels, commands....procures"
or helps a foreign enemy, provide "material support" to alleged terrorist
groups, engages in spying, or commits other offenses previously handled
in civil courts.
No evidence is needed. Those charged are guilty by accusation. Judicial
fairness is denied.
On June 11, The New York Times headlined "Justices Reject Detainees'
Appeal, Leaving Cloud Over Earlier Guantanamo Ruling," saying:
It "refused to hear appeals from seven men held at Guantanamo....passing
up an opportunity to clarify its (2008) decision...."
Human rights groups expressed alarm. More on that below.
The Fourth Circuit of Appeals decision remained binding. It said:
"Special factors do counsel judicial hesitation in implying causes of
action for enemy combatants held in military detention."
"First, the Constitution delegates authority over military affairs to
Congress and to the president as commander in chief. It contemplates
no comparable role for the judiciary."
"Second, judicial review of military decisions would stray from the
traditional subjects of judicial competence."
"Litigation of the sort proposed thus risks impingement on explicit
constitutional assignments of responsibility to the coordinate branches
of our government."
The arguments were spurious. Inviolable constitutional and international
laws were dismissed. Nonetheless, the ruling stands.
The Supreme Court also rejected Jose Padilla's petition. Unjustly charged
as an "enemy combatant," he was lawlessly held for nearly four years
in military and civilian confinement.
He was denied due process, isolated, tortured, and dehumanized. He was
emotionally destroyed. In court, he was a shadow of his former self.
In January 2008, he was sentenced to 17 years, four months in federal
prison. He currently endures "supermax" harshness.
ACLU lawyer Ben Wizner represents him. He said the Supreme Court's decision
gives Washington a blank check "to commit any abuse in the name of national
security, even the brutal torture of an American citizen in an American
Padilla suffered extreme physical and psychological abuse. He sued for
damages. He cited statute law and former court decisions. He held top
US officials responsible.
He spent two years in solitary confinement at the Consolidated Naval
Brig, Charleston, SC. He was denied legal and family contacts. His only
human interaction was with interrogators. Food was delivered through
a cell door slot.
Blackened windows blocked natural light. He was alternately subjected
to prolonged periods of constant artificial light or total darkness.
He was denied his legal right to pray five times daily. His Koran was
Periods outside his cell included sensory deprivation. It included blackout
goggles and sound-blocking earphones. He was denied reading materials,
radio and television.
He had no mattress, blankets, sheets or pillows. His bed was a steel
slab. His sleep was disturbed by banging, glaring artificial light,
noxious odors, and extreme temperature variations.
He was subjected to truth serums, painful shackling for hours, excruciating
stress positions, intimidation, and death threats. It was too much for
anyone to bear. His mind was turned to mush.
Donald Rumsfeld and other high US officials ordered his brutal treatment.
Others lawlessly held also received it. They include everyone at Guantanamo
and other US torture prisons.
On February 9, 2007, Padilla's attorneys petitioned for "monetary, injunctive,
and declaratory relief for (his) unlawful designation, seizure, and
In February 2011, a federal district court dismissed his petition. So
did the Fourth Circuit in January 2012. The ACLU called it a sad day
for the rule of law.
Because Padilla was declared an "enemy combatant," rulings said he fell
outside the jurisdiction of civil courts.
They mocked judicial fairness. The High Court affirmed it. They spurned
fundamental constitutional and international law rights. They approved
torture and other harsh police state measures. They left everyone vulnerable
to abusive treatment.
ACLU National Security Project director Hina Shamsi responded, saying:
"Four years ago, the Supreme Court held that the Constitution guarantees
Guantánamo detainees the right to test the legality of their
detention in federal court."
"The court’s decision in Boumediene v. Bush was a historic ruling, but
unfortunately it has been severely undermined by a series of decisions
from the federal appeals court in Washington."
"The Supreme Court’s refusal to hear even a single habeas appeal by
a Guantánamo detainee in the past four years despite those decisions
is inexplicable. Today’s announcement continues that trend and is profoundly
Center for Constitutional Rights (CCR) Executive Director Vincent Warren
expressed alarm, saying:
CCR "is extremely disappointed in the Supreme Court’s denial of certiorari
in the latest set of habeas cases brought by Guantánamo detainees."
"By refusing to hear these cases, and any Guantánamo cases since
its 2008 Boumediene decision, the Court abandons the promise of its
own ruling guaranteeing detainees a constitutional right to meaningful
review of the legality of their detention."
"Today’s decision leaves the fate of detainees in the hands of a hostile
D.C. Circuit Court of Appeals, which has erected innumerable, unjustified
legal obstacles that have made it practically impossible for a detainee
to win a habeas case in the trial courts."
"The D.C. Circuit, the country’s most conservative court of appeals,
has reversed every detainee victory appealed to it by the government,
and as consequence, district courts in D.C. have ruled in favor of detainees
in only one of the last 12 cases before them."
Warren also explained the importance of responsible checks and balances.
With few exceptions, they've been sorely lacking.
June 11 was a dark day. Many others preceded it. Rule of law protections
Congress spurned them by enacting tyranny. By signing unconstitutional
laws, George Bush approved them. So did Obama.
The Roberts Court followed suit. June 11 will live in infamy. Freedom
took another heavy body blow. Expect a final coup de grace to end it
altogether. It may come when least expected.
Stephen Lendman lives in Chicago and can be reached at firstname.lastname@example.org.
His new book is titled "How Wall Street Fleeces America: Privatized
Banking, Government Collusion and Class War"
Visit his blog site at sjlendman.blogspot.com and listen to cutting-edge
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