Outrageous and Sad – these are the best words to describe today’s news from the Supreme Court. In February, the D.C. Circuit Court of Appeals ruled that the Military Commissions Act (MCA), passed and signed in the fall of 2006, effectively stripped Guantánamo’s inmates of any right to habeas corpus, a basic protection in our thousand-year-old Anglo-Saxon legal tradition. Detainees filed with the Supreme Court asking the Court to rule on the constitutionality of that law, and to rule expeditiously. Today the Supreme court said…. NOT YET.
The legal battles over the Bush administration’s detention policies in the “war on terror” illustrate the extent to which decades of right-wing judicial appointments by Republican presidents have compromised our courts and our freedoms. We knew with the appointments of Roberts and Alito to the Supreme Court that all of these battles would be uphill fights. Our only swing vote in the Supreme Court is the very conservative Judge Kennedy. As I read today’s opinion I can only determine that Justice Stevens is trying hard to take Kennedy under his wing. It is clear Kennedy is not ready yet to slam down the unconstitutional MCA yet and the best we can apparently do is keep him from voting with the ultra right (wrong) Scalia, Thomas, Roberts and Alito., The joint statement from Justices Stevens and Kennedy leave the door open to future review once detainees have exhausted their (unconstitutional) remedies and/or if the government causes any "unreasonable" delay of those remedies, or causes "some other and ongoing injury.” Of course, when it comes to treatment of “enemy combatants,” “unreasonable delays” and ongoing injuries abound. Moreover, the only other recourse allowed under the DTA/MCA is for a challenge of their enemy combatant designation in the D.C. Circuit (need I mention that is the court that keeps finding whatever Bush does to be just fine…)
I am now burdened by the sad task of writing to my clients in Guantánamo and letting them know that America’s legal system, once a model throughout the world, has failed them again.
- H. Candace Gorman