The Supreme Court and Guantanamo Bay

It comes as no surprise that the world as we knew it forever changed on September 11, 2001. Soon after, the War on Terror began and the was faced with the question of how to address the issue of enemy combatants. To answer this question, the began to transfer foreign terrorism suspects to the Marine Corps base at Guantanamo Bay, . Since the time these terrorism suspects began to be transferred and detained at the base, more than 700 have been processed through the facility. Presently, more than 400 detainees are being held at Guantanamo Bay awaiting their fate to be determined.

The terror suspects are classified as enemy combatants. However, these enemy combatants have not been given access to the United States Courts and instead, a separate military tribunal was proposed by the President and created to dispose of these cases. This administration decision, however, was challenged and the case ultimately made its way to the United States Supreme Court who announced a decision last week

In a 5-3 decision the Supreme Court of the said that the President had exceeded his authority in establishing a separate military trial system for the detainees without the necessary authority being granted from Congress. Had the Court allowed Bush’s plan, the newly created tribunals would not have allowed the detainees to see all of the evidence against them nor would they have been allowed to have attended all court proceedings conducted in their case. In overturning this Presidential action, the Court said that the proposed tribunal did not provide sufficient protection for the detainees and that the plan violated both the United States Uniform Code of Military justice and the Geneva Convention in dealing with prisoners of war. As well, in overturning the President’s proposed tribunal system, the fate of more than 400 detainees has been thrown into question with no clear indication as to what may happen to them.

The Court’s decision was 5-3 as Chief Justice John Roberts recused himself from the case as he had sided with the government when he was a justice on the D.C. Circuit Court of Appeals who had earlier heard the same case. The had argued that a congressional resolution passed shortly after the September 11, 2001 terror attacks did not grant as much authority as the present administration had claimed. In fact, the administration had taken the position that the congressional resolution granted the President the authority to create the military tribunal.

With the Court having struck down the President’s plan to try these cases before the new military tribunal, the fate of the detainees is unclear. However it is clear the administration will have to find some other manner to address the legal questions surrounding these detainees.

Some have said that the Court’s decision is a sign that the detainee camp at Guantanamo Bay should be shut down. However, while it is clear that the President’s initial plan will not go forward, the President and Republican leaders have made it clear that the detainee camp will not be shut down and that they will work with Congress to find a way to address the future of the detainees. In fact, the chairman of the Senate Judiciary Committee, Arlen Specter, R-Pa. scheduled a hearing on the matter for after the July 4th holiday. On June 29th, Specter also introduced a bill that has been dubbed the “Unprivileged Combatant Act of 2006” that would authorize the tribunals that Bush initially proposed. Senate Democrat leader Harry Reid, D-Nev. has said that the terrorists need to be punished, but using legal means, likely meaning that he believes that the terrorists should be tried in United States civilian courts and likely signaling that there will be opposition to the legislation proposed by Specter.

There are other alternatives for trying the detainees though. It would be possible to try the terrorists in federal courts or existing military tribunals. If either of these methods were used, the process would give the detainees more rights than would have been afforded under the President’s previous plan. The administration had formulated the plan for the separate military tribunals to guard the release of information that may harm efforts in the War on Terror. During trial, the detainees would not be allowed to see all of the evidence against them. The theory was that if active terrorists knew of evidence in the government’s possession or how it had been obtained, they could change there terror methods and put our country in further danger.

In light of the recent decision, attorneys for a number of the detainees have pledged to take more cases to the Supreme Court in hopes of having more detainees released.

As important as this case is in that one of the President’s major programs in the War on Terror has been overturned, there are two even more interesting and perhaps more reaching ramifications that could potentially come about as a result of this decision.

First, the administration has used a number of tools in the War on Terror such as the administrations wiretap program, cell phone record reviews and the review of certain financial records, and other programs. Many of these programs were instigated as a result of the same congressional resolution that the administration used to establish the military tribunals. With the authority for the tribunals being called into question, the future of the other tools being used in the War on Terror could now be in question. The majority of the court, in deciding this case, did not mention any of the other tools that has been used in the War on Terror, but the Court did say that as a result of there being no specific language of the congressional resolution, the administration had no power to establish the military tribunals. This language, which essentially says that absent the plain and specific language authorizing any program in question, means that other policies and tools of the administration may be questioned.

The second implication of this decision can be found when examining the make up of the Court in reaching the decision. There is a clear liberal faction of the Court – Justices Stevens, Ginsberg, Souter and Breyer. There is also a clear conservative part of the Court – Justices Scalia, Thomas, Alito and Chief Justice Roberts. Then there is the swing vote of Justice Anthony Kennedy. Given the make up of the Court, when there are close issues, it will be Justice Kennedy who decides the outcome of the case as you can expect the liberal and conservative justices to agree and side together on most issues. However, with Kennedy, you simply don’t know what he will do. Recently, he sided with the conservative majority when faced with an issue of illegal immigration. However, just because Kennedy sides with one side on a certain issue, doesn’t mean later issues will be decided based on what he has done in the past. With every decision Kennedy is faced, it becomes more and more clear that no one knows what Kennedy will decide. Even should the issues be similar, this would be no indication as to how Kennedy would rule. This makes him perhaps the most powerful and, perhaps the most dangerous, justice on the Court. The inconsistency in his decisions could easily translate to inconsistency in the decisions from the highest court in the land.

So, as set out above, the future of the detainees at Guantanamo is now in question. The Supreme Court has struck down the tribunal system in place for the detainees. Either the government will have to pursue the cases in federal court or existing military courts with the disclosure of more evidence than the government wants or wait for Congress to authorize additional courts. Even though many call this a victory for the detainees, they will remain in Guantanamo as enemy combatants, without trial, until some approach to the resolution of their cases can be decided and this will not be anytime soon.

Perhaps those who will truly suffer are the American people who could see their safety eroded as tools in the War on Terror no longer available for use to fight the terrorist. This will give the terrorists more and more opportunities to wage their war against us without fear of discovery. Perhaps even more troubling is the direction the Supreme Court seems to be taking as an inconsistent future seems to be on the horizon.

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