The reaction by many US conservatives, including Republican Presidential hopeful John McCain, to the recent US Supreme Court decision to grant detainees held at Guantanamo the right of Habeas Corpus has been, dare I say, rather un-American. In fact, McCain has even gone so far as to call the decision the worst in the history of the Supreme Court. One wonders if Mr. McCain, and those who share his view, have read Thomas Paine’s Rights Of Man?
Of those detained at Guantanamo, how many are innocent? Some officials have claimed the number could be in the hundreds – all of them held without official charge and without legal recourse or access to council under the auspices of either US or International law. Basically – they have absolutely no rights. They can be disappeared, transferred to undisclosed locations, and can be made to endure whatever their captors decide is “acceptable” given the circumstances.
Some of you might view the facility at Guantanamo as essential with regards to US national security. Some of you might agree that granting detainees the right to Habeas Corpus is a disastrous decision because it’s gifting them rights that they don’t deserve given the now familiar mantra that the War On Terror is a “new kind of war” that requires the employment of a strong and determined mindset to fight. Unfortunately, when it comes to the rule of law, you can’t have it both ways. You cannot claim to be a global champion of it while completely denying due process to a select few. Because if that precedent can be established and its hypocrisy not confronted, then the question ultimately has to be asked – where does it end?
True democratic principles do not conform to the whims of a Presidential administration, nor those that support its flagrant abuse of the rule of law. They demand the existence of impartiality, of legal representation, and the right to seek relief from unlawful imprisonment. During the Civil War, Abraham Lincoln suspended the writ of Habeas Corpus three times. The United States Constitution specifies that it can only be suspended “…when in cases of rebellion or invasion, the public safety may require it.”. Of course, many disagreed with the legality of Lincoln’s right to impose the suspension, but the circumstances were, of course, much different than those now faced, though it is still an issue that is argued over to this very day.
Legally, can those that have been held by the United States in legal limbo for the last seven years be viewed as invaders? Did 9/11 technically constitute a military invasion of the United States? Obviously they cannot be classified as individuals in revolt as they are not US citizens. Therefore, according to the Constitution, they have to be labeled as members of an invading force for Habeas Corpus to be suspended. The problem, of course, is that the majority of them were apprehended in foreign countries, and therefore not a part of any invasion force. In that case, International Law should take precedent, not to mention articles of the Geneva Conventions, but the protections of both have also been denied them.
The Red Cross was granted access to the facility at Guantanamo, had the courage to attack its conditions and hypocrisy, and have since been denied access to it. The United Nations followed suit, with the UNHRC coming to similar conclusions. Of course, neither had any impact on US policy.
So, after seven years in legal limbo, the US Supreme Court has granted those being held at Guantanamo the right of Habeas Corpus, which, in layman’s terms, means that detainees can individually take their cases to US courts and contest unlawful imprisonment. But the Supreme Court’s decision is not without its caveats. The ruling, in part, reads…
“United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.”
Thus, while detainees have been granted the possibility of redress, US courts possess the right to consider challenges to the legality of their detention. That stipulation is, in truth, a loophole that provides US courts, on a case by case basis, the right to consider whether the auspices of Habeas Corpus will be granted. One very important of the ruling though is that it does provide the chance for a precedent to be set with regards to finally clarifying the legal status of detainees.