When we filed Rasul v. Bush two years ago, we might have predicted that the case would eventually reach the Supreme Court. What we could not have anticipated, in those dark times, was the great sense of optimism we would feel after we had our day in court.
Yesterday, April 20th, at 10 in the morning, the court assembled to hear oral arguments from both sides. CCR was represented by Judge John Gibbons, the retired Chief Judge of the Third Circuit Court of Appeals. A Nixon appointee, Judge Gibbons argued persuasively that the court must find that Guantanamo Bay falls within the jurisdiction of U.S. courts, and that the hundreds of men detained there must be allowed a foot in the door to defend themselves before the government is allowed to hold them prisoner.
This is an issue with deep roots in our legal system. It is a bedrock principle of our society that no one may be held by the government without any reason why that the government must specify the grounds for incarceration, and provide some opportunity for individuals to contest their detention. It can be traced back nearly 800 years, to the signing of the Magna Cartain 1215.
What the government wants to do is return to a time when the ruler has absolute power over individuals, without any check on that power, says Michael Ratner, CCR President. That time is 1214 A.D.
One of the most important issues that was raised is how to apply this notion to this case. There is a federal law that implements the principle of habeas corpus it says that the courts shall entertain an application for a writ of habeas corpus in behalf of a person in custody& on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
We argue that person is not and cannot be qualified; the government wants to restrict its application to only citizens. In a sustained exchange, Justices Kennedy and Souter challenged Solicitor General Ted Olson on this point. Drawing from this, Justice Breyer concluded that there was a clear rule to be inferred from the governments argument, but one that vested too much authority in the person of the President:
It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check.
Rasul is one of the most controversial and important cases before the Supreme Court this year, one that cuts to the heart of a host of issues, not least among them the separation of powers under which the judiciary functions as a check on the power of the other branches of government. We are hopeful that the Justices will rule in our favor, and in doing so, in defense of this critical oversight provided by the courts. A decision will most likely come down at the end of June.
For more information on Rasul v. Bush, please visit: http://www.ccr-ny.org/rasul/. For a complete audio transcript of the argument, see: http://www.c-span.org/courts/oralarguments.asp.
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The Center for Constitutional Rights (CCR) is a non-profit legal and educational organization dedicated to protecting and advancing the rights guaranteed by the U.S. Constitution and the Universal Declaration of Human Rights.
Phone: (212) 614-6464
Web site: www.ccr-ny.org
E-mail: info@ccr-ny.org