The U.S. Supreme Court in June struck a blow for the separation of powers and dealt the Bush administration a big setback by ruling that suspects held without charge at Guantanamo Bay, Cuba, have the right to contest their imprisonment under the doctrine of habeas corpus.

Simply put, the Court held that the government may not keep anyone in custody without having to justify its actions to a judge.

In the 5–4 ruling the Court said Congress had unconstitutionally suspended habeas corpus for the detainees. It ruled that neither the fact that the petitioners were foreign nationals nor the fact that Guantanamo is not formally U.S. territory mattered to the question. Habeas corpus—the Great Writ—was at the core of the Founders’ efforts to deprive government of arbitrary power, the majority said.

Writing for the majority, Justice Anthony Kennedy said, “[P]rotection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights. In the system conceived by the Framers the writ had a centrality that must inform proper interpretation of the Suspension Clause.”

The Suspension Clause of Article I, Section 9, of the U.S. Constitution 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 require it.” The “privilege” is not restricted to U.S. citizens.

In a law signed by President Bush in 2006, the Military Commissions Act (MCA), Congress sought to take away the courts’ jurisdiction over habeas corpus petitions from Guantanamo detainees. The majority declared that section of the MCA unconstitutional.

The Bush administration maintained that an adequate alternative to habeas corpus had been provided, but the majority disagreed. In fact, under current law, detainees have none of the usual safeguards accorded people accused of crimes.

The Court rejected the argument that the detainees are in effect conventional prisoners of war, since they can be held indefinitely without charge—some have been held for six years—and some were apprehended far from any actual battlefield. “The costs of delay can no longer be borne by those who are held in custody,” Kennedy wrote.

What is heartening about the decision is the majority’s emphasis on how important habeas corpus is to the never-ending effort to keep government on a short leash. Key to that, it said, is the separation of powers. Without habeas corpus, the executive branch acquires the powers of the judiciary in conflict with the intent of the framers.

“The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty.”

And what of security? Kennedy responded, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.”

The Court noted that the great jurist William Blackstone described the Habeas Corpus Act of 1679 as the “stable bulwark of our liberties.”

Whatever the leeway extended to the U.S. government in past wars, the Court majority understands that the current situation is different and especially fraught with the potential for tyranny in the name of security. The administration has declared the entire world—including the territory of the United States—a battlefield in a “war on terror” that by its very nature has no specific adversary or identifiable end point. Thus defenders of liberty must be wary of claims to extraordinary powers.

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—Sheldon Richman
srichman@fee.org