Kennedy: “Liberty and Security Can Be Reconciled”

Today, the Supreme Court’s decision in Boumediene v. Bush was a clear rebuke of the Administration’s attempt to deny Guantanamo detainees’ basic rights. Another decision, in Munaf v. Geren, upheld the Administration’s view that the U.S. government cannot interfere with foreign criminal proceedings, even if foreign detention may result in the torture or death of an American citizen.

Together, these cases present some of the questions facing the U.S. as it moves towards a new post-Bush era detention policy. But without the facts, you can’t answer the questions, so here you go:

Boumediene v. Bush, (No. 06–1195) raised the question of whether or not the Executive has the right to imprison individuals without habeas corpus in territory under U.S. jurisdiction and control. The prisoners, both being held at Guantanamo Bay, had been deemed “enemy combatants” through Combatant Status Review Tribunals (CSRT), a procedure whose legality was at the heart of the decision—prisoners who are denied counsel are provided with “personal representatives” and not guaranteed access to evidence and/or witnesses against them.

This case involved six Algerian immigrants who had established legal residency in Bosnia. Under pressure from the U.S. government, the six were arrested in October 2001 by Bosnian police as they were suspected to be plotting to bomb the U.S. Embassy in Sarajevo. Three months later, they were released by the Supreme Court of Bosnia and Herzegovina due to a lack of evidence, upon which the Bosnian police arrested them again, this time handing them over to the U.S. military, ultimately resulting in their detention at Guantanamo.

In their decision, the majority ruled that those in U.S. custody have access to habeas corpus in civilian courts and that the current system was insufficient. Anthony Kennedy, who wrote for the majority stated that, “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

The other decision, in Munaf v. Secretary of the Army (06–1666) and Secretary of the Army v. Omar (07–394), dealt with whether or not American citizens held by the U.S. military as part of a multinational force still have their basic rights to due process guaranteed by the Constitution.

Both Mr. Omar and Mr. Munaf, arrested in Iraq during October 2004 and March 2005 respectively, had established themselves as American citizens. Mr. Omar had moved to Iraq to find work as a construction worker and Mr. Munaf was acting as an interpreter for Romanian journalists at the time of their arrests.

Although the case was decided unanimously against the detainees, the court ruled that they are entitled to have their cases reviewed by U.S. Courts. But, the court also found that the U.S. Government has the authority to transfer the detainees’ to Iraqi custody, even if there’s evidence that they will be tortured or killed.

Both of these cases will have major implications for other detainees being held as “enemy combatants” or otherwise, although it remains to be seen how broad the reach of these decisions will be.