US Court Shocker on Gitmo

The US Supreme Court handed down a major rebuff to the Administration today, holding that Guantanamo Bay detainees have the right to challenge their detentions in United States civil courts.



The decision is a 5-4 written just Justice Anthony Kennedy. Chief Justice Roberts and Justices Alito, Scalia and Thomas have lengthy dissents.

The 135 pages of the majority and minority opinions are dense but interesting reading, especially as Justice Kennedy goes through the contortions of law under which the US claimed to control, but not have legal sovereignty over, Guantanamo Bay since 1898. "The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this...Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another."