Guantanamo: The Court Has A Chance to Prove That It Matters

Written by Rebecca Zietlow on December 11th, 2007

Last week, the Supreme Court heard the case of Boumediene v. Bush, in which the Court considered whether detainees held in the United States military prison in Guantanamo Bay, Cuba, have a constitutional right of access to federal courts to challenge their internment. This case provides the Court with a chance to show that it still matters to folks seeking to vindicate their constitutional rights. Since Marbury v. Madison, the institution of judicial review has been justified by the role that courts play in protecting the constitution, and individual rights, from the tyranny of the majority. However, in the past thirty years, the Supreme Court has shied away from that role and made it harder for individuals to obtain access to courts to vindicate their rights.

From cases narrowing the Private Right of Action doctrine, to those rigorously enforcing the justiciability requirements of Article III; from rulings making it harder for public interest lawyers to win attorneys’ fees as compensation for their law reform efforts, to those reviving the doctrine of sovereign immunity and imposing strict limits on congressional power to abrogate that immunity, the Rehnquist Court limited access to the courts as a forum for protection of constitutional rights. The Court has also limited its own jurisdiction, now hearing the fewest cases per year of any Court in the modern era. Finally, the Court has made it harder for Congress to vindicate equality rights and has narrowly interpreted congressional statutes protecting those rights.

This case represents a different scenario. Here, Congress has limited access to the federal courts of the Guantanamo detainees by enacting the Military Commissions Act (MCA) in the spring of 2006. The MCA was Congress’ response to the Court’s ruling in Hamdan v. Rumsfeld, in which the Court ruled that the military tribunals established by the Bush administration military tribunals illegally conflicted with an earlier federal statute authorizing military tribunals. The MCA purports to authorize the Bush administration’s military tribunals and eliminate habeas corpus review of tribunal proceedings.

Now, the Court has to decide whether it will allow Congress to make it irrelevant or whether some constitutional right of access to the federal courts still exists, even to those who are held in military prisons outside the territorial United States. Does the Court still have a role to play in protecting “discrete and insular minorities“? Does the Court still carry out the function of protecting the constitution from lawlessness and tyranny? The Court’s decision in Boumediene will go a long way towards answering that question.


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