BE LINCOLNESQUE:

In 3 Rulings, Supreme Court Affirms Detainees' Right to Use Courts (DAVID STOUT, 6/28/04, NY Times)

Besides the basic issue in their case, there was a secondary but still vital question involving the status of Guantánamo Bay itself.

Since a 1950 Supreme Court case has been interpreted to mean that enemy combatants held outside the United States have no right to habeas corpus, the detainees had to show through their lawyers that Guantánamo Bay is functionally, if not formally, part of the United States.

On the one hand, a long-ago treaty with Cuba said that it retained sovereignty over the base. On the other hand, the treaty also said that the United States exercised jurisdiction and control.

In any event, the United States Court of Appeals for the District of Columbia Circuit ruled last year that the federal courts lacked jurisdiction to hear habeas corpus petitions from the detainees — a position that the Supreme Court rejected today.

The majority noted that the 1950 case cited by the administration involved German citizens captured by United States forces in China, then tried and convicted of war crimes by an American military commission in Nanking, and finally imprisoned in occupied Germany.

In contrast, the Supreme Court majority noted today, the Guantánamo detainees are not only held in territory arguably under United States control but they also have not had their guilt or innocence determined, unlike the Germans of a half-century ago, and have been held without formal charges.

Justice Scalia's dissent, joined by Chief Justice Rehnquist and Justice Thomas, was as emotional in tone as was Justice Stevens's dissent in the other direction in the Padilla case. The majority's holding in the Guantánamo case was so reckless as to be "breathtaking," Justice Scalia asserted.

Justice Scalia went on to declare that the majority's position needlessly upset settled law, and was particularly harmful in a time of war. "The commander in chief and his subordinates had every reason to expect that the internment of combatants at Guantánamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs," he wrote.

The solution seems pretty simple: the President should just suspend habeus corpus in Guantanamo.

Posted by Orrin Judd at June 28, 2004 4:26 PM