International law expert comments on status of Guantanamo Bay detainees

Leila N. Sadat, expert on international law and professor of law at Washington University in St. Louis, is closely following the status of the detainees at Guantanamo Bay. Sadat, the director of the Whitney R. Harris World Law Institute, is the author of the leading treatise on the international criminal court, “The International Criminal Court and the Transformation of International Law: Justice for the New Millennium,” as well as a co-author of a casebook on international criminal law. Her comments on the Supreme Court’s recent decision giving Guantanamo Bay detainees the rights of habeas corpus follow:

The Great Writ — habeas corpus


“This narrow ruling was based on a classic historic understanding of the purpose of habeas corpus, which is so essential to maintain the individual liberties enshrined in the Constitution against excesses of both executive and legislative power.

“The Court’s opinion underscores the commitment of the United States to be governed by the rule of law even during times of national stress, and is a courageous response to the overreaching policies of the executive branch, buttressed by a compliant Republican Congress, that have caused world wide criticism of U.S. interrogation and detention policies.”

What happens next?

“The decision did not result in the detainees’ release; rather, it simply permits them to file a writ of habeas corpus, just as they would have been able to do prior to the adoption of the Military Commission’s Act of 2006.

“Given the Supreme Court’s narrow rulings in recent detainee cases like Hamdi and Hamdan, the scope of that habeas review is likely to be quite narrow, and the Boumediene ruling does not itself specify the precise scope of habeas review available on remand. Nonetheless, it does mean that the detainees will have the opportunity to appear before a federal judge, as opposed to either a combatant status review tribunal or military commission convened, it seems, for the sole purpose of ascertaining their guilt and/or keeping them detained indefinitely.”

The question of torture

“Although silent on the question of torture and rendition, the opinion cannot be divorced from the facts: many of those held at Guantanamo Bay have been subjected to torture and/or cruel, inhuman and degrading treatment, making the ability to bring their cases to the courts even more urgent. A rebuff to the Bush Administration’s claims of absolute power, claims that have been both radical and unprecedented, the opinion was greeted with relief around the world and throughout the United States by those worried that the United States was turning its back on the rule of law.”

The opinion

“The majority opinion, written by Justice David Kennedy, is measured, thoughtful and carefully examines the legal arguments on both sides of the question presented to the Court. The opinion is limited to the detainees in Guantanamo Bay, notes the legitimacy of the Executive’s security concerns and suggests that the opinion is a result of the six-year-long detention that many inmates have endured with no end in sight. The opinion notes that none of the individuals held are from countries with which the United States is now at war. The tone of the opinion evidences great concern both with the Congress’ and Executive branch’s authority, and treads lightly even as it carves out an independent role for the judiciary, a co-equal branch of government under our Constitutional scheme.

“The same cannot be said of Justice Scalia’s dissent, which is as intemperate as it is ill-considered. Scalia, in a fit of pique, argues that not only is the majority incorrect as a matter of law (a proposition that most would dispute), but that the ‘game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder . . . and will almost certainly cause more Americans to be killed.’ Of course, insult is the lowest form of argumentation; and fear mongering combined with insult is even more problematic.

“Scalia confuses a policy argument (it is a good idea to imprison detainees abroad without access to the Courts) with a legal argument (it is the Executive branch’s privilege under the Constitution to do so) and thereby engages in a polemic unlikely to convince many as to the correctness of his legal reasoning; but very likely to decrease overall respect for the Court that he has the extraordinary privilege to serve upon.”