2008 Archive

Berkeley Law Expert: Guantanamo Ruling Bolsters Constitutional Checks and Balances

The U.S. Supreme Court recently waded into an ongoing controversy by allowing Guantanamo Bay detainees to challenge their incarcerations in civilian court. But Berkeley Law professor Goodwin Liu says the ruling simply upholds the basic principle of checks and balances at the heart of our constitutional system.

With a 5-4 majority, the Court held that Guantanamo detainees have a right to habeas corpus—the ability to seek relief from unlawful detention—guaranteed by the Constitution. Extending these protections to noncitizens held under U.S. control allows federal judges to decide whether a detention is ultimately constitutional.

"It’s a vital separation of powers ruling, and it is the latest in a line of recent decisions rejecting the President’s broad assertions of executive authority," says Liu, a constitutional law expert. "The Court is basically saying that the war on terrorism, however unprecedented and unconventional it may be, must still be conducted within the rule of law."

The Bush administration opened the detention facility at Guantanamo Bay, Cuba soon after 9/11 to hold alleged enemy combatants and people suspected of ties to al-Qaeda or the Taliban. In 2006, Congress passed the Military Commissions Act, which created an extra-judicial system that designated Guantanamo prisoners as enemy combatants and barred them from filing habeas petitions for their release.

As a result, detainees have had limited recourse to challenge their classification and confinement as enemy combatants. The Supreme Court ruled that the constitutional guarantee of habeas corpus applies to Guantanamo detainees and that the current procedures do not provide them with adequate safeguards against misclassification and unlawful detention.

A Different Kind of War

Habeas rights had been granted to citizens outside the U.S., and to non-citizens within the U.S., but this marks the first Supreme Court ruling granting such rights to non-citizens outside the U.S. In dissent, Justice Antonin Scalia wrote that it "will make the war harder on us" and "almost certainly cause more Americans to be killed."

Writing for the majority, Justice Anthony Kennedy said Guantanamo lacked a precise historical parallel and "the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional." Kennedy contrasted Americans holding prisoners of war in Germany during World War II with the current Guantanamo situation, noting that the U.S. did not intend to occupy Germany—or to hold those prisoners indefinitely.

"Here we have detainees captured in the Middle East and elsewhere, brought to Cuba, and held in an American-controlled facility for an indefinite duration," Liu says. "There’s no clear prospect of an end to hostilities or a conventional return of POWs. The Court is saying the right of habeas corpus serves as a vital check against the Executive in a situation like this, where the United States exercises full control over these individuals in a territory that, for all practical purposes, we also fully control."

Legal analysts note that the ruling indicates the Court does not believe the Constitution should be read in a formalistic way, and that the separation of powers principle is to be understood within the context of the times.

"The framers couldn’t have expected a war on terrorism," Liu says. "But the Court adapted the principle of checks and balances to this unconventional war to prevent the concentration of power into a single branch of government. Such concentration of power is exactly what the framers sought to prevent when they wrote the Constitution."

Practical Implications

A hotly debated issue is what impact ensuing habeas petitions will have on the military and the courts. The Court made no broad statements about the constitutionality of the government’s detention programs beyond Guantanamo Bay, and cautioned federal courts to protect national security concerns in devising habeas procedures.

In a Washington Post-ABC News poll conducted soon after the Court’s decision, 61 percent disagreed and said non-citizens suspected of terrorism should not have habeas rights under the Constitution while 34 percent said they should. Even with the ruling, many Guantanamo detainees may still face an arduous road to freedom.

"Federal judges who have to manage this process will do so in a responsible and careful manner," Liu says. "Judges have traditionally shown deference to national security concerns, and no judge wants to be the one who released someone that wound up back on the battlefield against the United States."

By Andrew Cohen