It is Monday, March 16, 2009. These two lawyers are dancing in celebration outside the home of Iftikhar Chaudhry , Chief Justice of the Pakistani Supreme Court. Why? Because Chaudhry, who had been suspended in March 2007 by then president Pervez Musharraf, has finally been reinstated by the government.
Chaudhry had become an embarrassment to Musharraf’s government. Among his inconvenient rulings: he ordered the country’s Intelligence agency to admit that it was holding secret prisoners. Musharraf finally had had enough. He dismissed the Supreme Court and placed the judges under house arrest.
Luckily our president can’t dismiss the Supreme Court. The powers claimed by President Bush in the war on terror didn’t go that far, but they went far out in that direction. In Pakistan, the firing of the judges led to the unprecedented Lawyers’ Movement. In the U.S., President Bush’s claim that he could hold people indefinitely outside of any system of justice — be it U.S. military or civilian law or international law governing the treatment of prisoners of war — led to a lawyers’ movement here in the U.S. By claiming the right to act outside of the law, the Bush Administration unleashed a storm of litigation.
It took a couple of years, but American lawyers, using the painstaking processes available under U.S. law, finally gained access to Guantanamo. Three times, their cases have reached the Supreme Court.
1. Rasul v. Bush (2004) — The Court ruled that American courts have jurisdiction to consider legal appeals filed on behalf of foreign citizens held by the U.S. military at Guantanamo.
2. Hamdan v. Rumsfeld (2006) — The Court ruled that the tribunals being used to try prisoners at Guantanamo were unconstitutional, and that the Geneva Conventions and Uniform Code of Military Justice could be enforced by the Supreme Court.
3. Boumediene v. Bush (2008) — The Court ruled that prisoners at Guantanamo had the right to habeas corpus under the U.S. Constitution, and that the military commissions established by Congress in 2006 (following Hamdan) were an unconstitutional suspension of that right.
Each time, the Court has ruled against the Administration. But the gains have been slow and incremental. Congress has pushed back with legislation that President Bush signed into law. And each ruling has opened up new avenues of litigation.
This summer the Supreme Court will decide whether or not to hear yet another Guantanamo case. This time the case is brought by the Chinese Uyghurs, who have been detained for over seven years despite long ago being found to harbor no enmity whatsoever towards the U.S, having been found to be “not enemy combatants” by a federal court, and, last fall, having been ordered released into the U.S. by a federal judge.
Guantanamo is Obama’s problem now. He has pledged to close Guantanamo by January 2010. But how he will do that, and what will happen to the detainees, is still an open question. Of special concern is the fate of the detainees who, like the Uyghurs, are cleared for release but have nowhere to go. If this Supreme Court case goes forward, it could force the government’s hand. According to Lyle Denniston, founder of the Scotus blog which follows and discusses Supreme Court cases:
“What is at stake, ultimately, could be the fate of many if not most of the more than 240 prisoners still at Guantanamo, who might have to remain confined there or somewhere else even if the government decides that they are not dangerous enemies.”
The lawyers representing the Uyghurs have worked long and hard for these innocent men who need a home. And they just don’t stop fighting. If they win this one, if the Guantanamo Uyghurs finally come to live in the U.S. under the care of the Uyghur American families who are waiting to take them in, you will see dancing in the streets.