Articles

Guantánamo case confirms it: Justices are our conscience

By Bob Braun
Star-Ledger
June 13, 2008

This is one of those rare Supreme Court decisions, maybe a few dozen at most in the history of the republic, that will be remembered and debated and taught -- and not because of 9/11 or terrorism or the war in Iraq.

But because it goes straight to the question of just what sort of country are we.

"It was stunning and dramatic and powerful," says Behar Azmy, one of a number of Seton Hall Law School professors who worked on the case that resulted in yesterday's decision affirming habeas corpus rights for inmates at Guantánamo.

"I'll remember where I was when I heard of the decision, just as I remember where I was when the towers came down and John Kennedy was killed," says Mark Denbeaux, another Seton Hall professor, active in the movement to provide legal representation to the inmates held at the Marine base in Cuba. Denbeaux was in his car.

The decision by Associate Justice Anthony Kennedy -- representing the 5-4 majority that ruled that foreign detainees, held without charges, can appeal to a civilian court -- is long and scholarly and short on the sort of rhetorical flourishes often associated with dramatic cases.

But, for all its investigation into the history of habeas corpus and questions about the operation of the so-called Suspension Clause, the basic ideas behind the ruling -- and the rights it upheld -- are simple:

What are the rights of persons accused by the government? Who gets to decide those rights? Who says what the law is?

"It means, basically, that the government cannot deliberately put people beyond the reach of the Constitution and the laws of the United States," says Azmy, who has taught at Seton Hall for eight years.

"The executive branch cannot be prosecution, judge, and jury and then take away the powers of the judicial branch," says the lawyer, whose client, Murat Kurnaz, a Turk born in Germany, was one of the litigants in the case.

Justice Kennedy invoked one of the most famous constitutional law cases ever decided -- Marbury vs. Madison, in which the new court of a new nation decided in 1803 it had the power to review the constitutionality of the actions of the other two branches of government. It was, in effect, the beginning of constitutional law in this country.

Former federal judge John Gibbons, also a professor at Seton Hall, helped write the brief that got the case before the Supreme Court. He says he believes the court, which once denied a hearing on the case, changed its mind because of a growing concern on the part of Justice Kennedy.

"I am convinced he was the one who changed his mind and got us before the court," says Gibbons, whose law firm represented a number of litigants.

Congress, at the urging of the Bush administration, tried to strip the federal courts of their jurisdiction to hear habeas corpus petitions brought by so-called "enemy combatants" held at Guantánamo. Habeas corpus is the right of an imprisoned person to have a judge hear evidence -- it's a right that predates this nation and goes back to old English law.

Habeas corpus does not guarantee anyone's release, but it requires the government to show why it is holding a person. It guarantees access to independent courts -- independent in the sense that, as Justice Kennedy noted, they were separate from the "political branches" of government.

"What the government and Congress had created was a black hole into which both the detained and their rights had disappeared," says Denbeaux. "This will bring order to a situation in which the wrong people were detained and the bad guys were released."

Politics, of course, could not help but play a role in a case so closely related to the horrors of 9/11 and the fears of terrorism -- but that is precisely why an independent judiciary that ultimately decides what the law is has been so important.

Gibbons says that the administration and Congress "defied" earlier decisions involving Guantánamo inmates and could, conceivably, defy this one.

He said he was especially concerned about what he believed was the infusion of politics into the dissent written by Associate Justice Antonin Scalia. Scalia warned the majority decision could lead to more American deaths.

"Those words," says Gibbons, "will go down in history as one of the most outrageous examples of partisan politics in the history of the Supreme Court."

Maybe. But the case -- Boumediene vs. Bush -- certainly will go down in history as one of the most important cases in American constitutional law.

Bob Braun may be reached at rbraun@starledger.com or (973) 392-4281.

Copyright 2008 The Star Ledger. Copyright 2008 NJ.com.

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