7-10-08, 9:26 am

For the first time this term, on June 12, 2008, the US Supreme Court split a decision on a case before it along political/ideological lines. On that day, David Souter, Ruth Bader Ginsburg, Stephen Breyer, John Paul Stevens, and Anthony Kennedy ruled that foreign detainees at Guantanamo Bay (Gitmo) have the right to appeal to US civilian courts. The decision came just as the first Gitmo trials are beginning. This important decision is a bitter pill to swallow for many in this country, especially given the twisted slant some of the media pundits have given it. But the American people should rest assured that it is a ruling based on justice and common sense, especially in light of the misdeeds of the present administration.

The legal plight of the Gitmo detainees would not have become an issue if it were not for the persistent efforts of Vincent Warren and the New York-based Center for Constitutional Rights (CCR), an offshoot of the ACLU. Warren was also the chief monitor of the Truth and Reconciliation Commission in South Africa in the late 1990s. Warren pushed the Gitmo case until it reached the high court. Opponents of the ruling claim that it is in violation of ex parte Qurin, which denied habeas corpus rights to German and Japanese detainees during WW2. However, ex parte Qurin has not been used since WW2, even though the US has been in several wars since then. Bush not only brought it back, he overkilled it McCarthy style. It is true that Franklin Roosevelt established a special tribunal for the trial of German spies sent into the US to commit sabotage, but this tribunal was established during a declared war against a foreign state, and was in operation before the Third Geneva Convention of 1949, which imposed more limits on war crimes trials. Michael Ratner, vice-president of CCR, sums up why the odds are still very much against the detainees:

'Although President Bush's order says that the defendants are to receive a 'full and fair trial,' many of its provisions appear to undermine that claim. These include provisions that: 1) permit the president to designate those to be detained and tried; 2) authorize the secretary of defense to appoint the judges, most likely military officers, who will decide questions of both law and fact; 3) suspend the federal rules of evidence and allow the introduction of evidence that is of probative value whether it be hearsay or evidence that has been coerced; 4) are unclear as to whether a defendant can choose defense counsel; 5) do not require conviction of proof beyond a reasonable doubt; 6) permit conviction and a death sentence upon the vote of two thirds of the commission members present; 7) allow no appeal, except that the record of the trial is submitted to the president or secretary of defense; 7) permit the proceedings, and presumably any death penalty, to be carried out in secret.'

This is the third time the high court has turned thumbs down on Bush's detainee law. Considering how he and his Republican predecessors have stacked the Supreme Court, as well as many others, this new ruling is extremely significant.

While Justice Kennedy admitted there is a terror threat to the US, he objected to leaving it up to the Bush administration alone to decide who is a terror threat. In support of the ruling, Kennedy wrote that 'the laws and Constitution are designed to survive and remain in force in extraordinary times.' Among those not in agreement with the 5-4 ruling are the usual suspects; lead by the always reliable and disturbing Antonin Scalia and his side-kick Clarence 'The Larynx' Thomas.

According to the Pentagon, 80 of the detainees are set for trial the 270 prisoners at the US Naval Base in Cuba. Bush’s stated disagreement with the latest Supreme Court ruling on the detainees is not legally relevant. The main point now at issue is that when someone has been held without charges for months or years at a time, what is the next step to take, as the attorney for a detainee, after such a landmark ruling? You move to have the charges dropped! Obviously quite a few of the Gitmo prisoners will now be going home, since the Supreme Court has ruled that simply declaring them 'enemy combatants' is not enough to keep them locked up for years without a fair trial.

--Chris Stevenson is a columnist for the Buffalo Challenger, contact him at