With Due Respect
US Supreme Court bashes Bush
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 21:45:00 08/09/2008
LAST SUNDAY, I DISCUSSED TWO RECENT American cases that affect our people. First, on June 12, 2008, the US Supreme Court (USSC) rejected, at least in this instance, the claim of Filipino human rights victims over the $35 million Marcos deposit in a US bank, on the ground that the Philippines, which also claims the deposit, could not be sued in US courts because of its “sovereign immunity.”
Right to habeas corpus. Second, I took up the USSC’s ruling dated June 28, 2008 declaring that the US Constitution guaranteed the right to bear arms to every individual, in contrast to our own Supreme Court’s decision on June 9, 2004 saying that such right was available only to members of the US militia.
Now, I will take up the celebrated “Boumediene vs. Bush” (June 12, 2008) which ruled that, to challenge their detention, alien enemy combatants imprisoned at the US base in Guantanamo, Cuba could invoke the writ of habeas corpus before American courts.
In 2005, the US Congress enacted a statute, the Detainee Treatment Act (DTA) stating, among others, that “no court, justice or judge shall have jurisdiction to hear or consider … an application for a writ of habeas corpus filed by or on behalf of an alien detained by the US Department of Defense at Guantanamo Bay, Cuba.” The law also prescribed procedures for the review of the detainees’ status.
In a hairline 5-4 vote, the USSC—speaking through Justice Anthony Kennedy—held in a 70-page decision that (1) “petitioners … are entitled to seek the writ; (2) the DTA procedures are an inadequate substitute for habeas corpus; and (3) petitioners … need not review in the Court of Appeals before proceeding with their habeas actions in the District Court.”
US courts open to enemy combatants. In stinging rebuke to the Bush administration’s argument that “Guantanamo is not within its sovereign control,” the Court took “notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory.”
In other words, the USSC looked at the stark fact, not the legal fiction; the reality, not the legal nicety. In effect, it told the Bush government: Don’t tell us you do not control Guantanamo. The hard, unadulterated fact is that you not only control but also cause everything happening inside that naval base.
Bristling with sarcasm, the four dissenters led by Justice Antonin Scalia moaned “(t)he game of bait and switch that today’s opinion plays upon the Nation’s Commander-in-Chief will make the war harder on us. It will certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today,” With grief, he concluded, “(t)he Nation will live to regret what the Court has done today.”
In his separate dissent, Chief Justice John Roberts, in more polite language, lamented: “Today, the Court strikes down as inadequate the most generous set of procedural protections ever accorded aliens detained by this country as enemy combatants.” In effect, the dissenters rued that America’s war against terror should be led by the President of the US, not by the legalisms of the Supreme Court.
“Boumediene” is the third Guantanamo setback of Bush. In two earlier cases (“Hamdan vs Rumsfeld,” June 29, 2006 and “Razul vs Bush,” June 28, 2004), the USSC ruled that (1) a military commission created by the US President lacked authority to try a Yemeni national classified as an enemy combatant (Hamdan) because the defendant was “not permitted to see and hear the evidence against him”; and (2) US District Courts have “jurisdiction to hear petitioners’ challenges to the legality of their detention at Guantanamo.”
There are several other notable new USSC decisions: (1) approving a law barring anyone without a government-issued photo ID from voting during elections; (2) showing USSC’s pro-business orientation by reducing the $2.5 billion punitive damages imposed on giant Exxon Mobil for the 1989 Exxon Valdes oil spill to “only” $500 million; (3) approving the use of lethal injection to execute convicts despite evidence that the procedure caused extreme pain; and (4) barring the imposition of the death penalty on the rape of a child, holding that the penalty may be invoked only in crimes involving the taking of life.
USSC influences RP SC. I discussed all these cases because our Supreme Court often takes its bearings from the USSC. Especially significant to libertarians are the three Guantanamo cases. May I caution however that several of these rulings had 5-4 votes—a stark reminder that the USSC is evenly divided between the “liberals” and the “conservatives,” with Justice Kennedy holding the vital swing vote.
Accompanied by Justices Angelina Sandoval-Gutierrez, Antonio T. Carpio and Adolfo S. Azcuna, I have had the honor of personally encountering Justices Kennedy, Sandra Day O’Connor (now retired) and Scalia, the leader of the conservatives.
Probing their great versatile minds was truly memorable. They were as adept in the arts, sciences, history and philosophy as in the law. During a light moment at one visit (June 1, 2005), Justice Gutierrez, an accomplished pianist, even played the “Malagueńa” at the high-ceilinged and chandeliered USSC reception hall, to the delight of the US jurists.
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Comments are welcome at chiefjusticepanganiban@hotmail.com
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