Legal News

Gitmo Case: Reactions from Around the Web

By Dan Slater

Earlier today, the High Court ruled that foreign nationals held at Gitmo have a right to pursue habeas challenges to their detention. In its 5-4 ruling in Boumediene v. Bush, the Court ruled that if Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion. Now the question of whether detainees are entitled to be released is left to district court judges in Washington, who are already deliberating how to handle the cases. (Gavel bang: Scotusblog)

In the meantime, we’ve rounded up several different takes on the ruling and its consequences.

What’s the big deal? Over at the Volokh Conspiracy, GWU prof Orin Kerr says the ruling is pretty much exactly what he predicted would happen in his Senate testimony over a year ago. “Nothing I’ve seen in the Court’s opinion so far is at all surprising,” writes Kerr, “and it’s a big defeat for the Bush Administration. This doesn’t mean I have some amazing powers of observation; rather, I think this was a defeat that you could see coming from miles (or in this case, years) away.”

Some things the opinion does NOT do: At the Balkinization blog, Georgetown’s Marty Lederman says that while the decision is momentous because the petitioners will be able to have their habeas petitions considered in district court, the Supreme Court did not reach at least four important questions: (1) Whether the Constitution applies to detainees held outside Gitmo; (2) What the substantive standard for detention is; (3) Whether GTMO should be closed (”[A]lthough,” writes Lederman, “it basically undermines the Administration’s principal reason for using GTMO in the first place, which was to keep the courts from reviewing the legality of the Executive’s conduct”); and, (4) Whether the administration should do away with the military commission trials.

“Good Day in Gitmo, Bad Day in Iraq”: That’s the title of a post over at Slate’s Convictions blog. Munaf v. Geren, another case decided today that involved U.S. citizens held by Americans in Iraq “is hardly pro-detainee,” writes Slate. “In a unanimous decision, the court ruled that while the U.S. federal courts have jurisdiction to hear the habeas petitions of Munaf and Omar (the U.S. citizen detainees), they would lose on the merits of their habeas claims—and there’s therefore no justification for blocking their transfer to the Iraqi authorities for criminal prosecution.”

Judge Posner is vindicated: In 2002, when the government first took the position that, because the detainees were captured overseas and held at GITMO they were beyond the protection of U.S. courts, Judge Richard Posner told the WSJ it was “absurd” to argue that prisoners’ rights “depend on the fact that they are stuck in Guantanamo rather than in the U.S.” Voila!

Full post as published by Law Blog - WSJ.com on June 12, 2008 (boomark / email).