On Tenth Anniversary of 9-11, a Look at Bourmediene v. Bush

On the 10-year anniversary of “9-11,” it is worth remembering all of the acts of heroism which memorialized the way our country united in the days after that terrible event. But it is also worth remembering the grimmer legacy as well. After 9-11, the federal government began imprisoning people accused of terrorism for indefinite periods of time and denied them basic rights, such as the writ habeas corpus. You don’t have to be a federal criminal defense attorney to be concerned about any criminal defendant being denied rights guaranteed by the Constitution.

That brings us to Bourmediene v. Bush. In this 2008 case, the U.S. Supreme Court applied the brakes to this government conduct. Bourmediene was a Bosnian held in military detention at a Guantanamo Bay prison camp. His was the third writ of habeas corpus case to reach the Supreme Court since 9-11. In each of the previous cases — Rasul v. Bush and Hamdan v. Rumsfeld — the Supreme Court had ruled that the government lacked authority to deny prisoners access to the U.S. justice system. However, Bourmediene was the first case to follow the Military Commissions Act (MCA) of 2006. The MCA tried to make denying justice to prisoners legal, by allowing military commissions to hear the prisoners’ cases instead of civilian court judges–thereby restricting prisoners’ ability to learn of the evidence against them, permitting “evidence” gained during so-called “extended interrogation techniques,” and making it possible to quash writs of habeas corpus.

The Bush administration argued that under the MCA, Bourmediene’s write of habeas corpus should be quashed. The Supreme Court, in a 5-4 decision, slammed the door on the Government’s case, ruling that even enemy combatants at Guantanamo, Cuba had the constitutional right to habeas corpus — or to request release from prison. The Court stated that If Congress tried to deny habeas corpus, there needed to be an adequate substitute in place in order to assure the prisoner a chance to prove that he was imprisoned by mistake.

As a result of Bourmediene, a federal judge ordered the release of five Guantanamo prisoners, including Bourmediene himself. In 2009, President Obama signed into law another Military Commissions Act that spelled out new rules for handling the rights of military commission defendants. Even so, attorneys for other detainees are anxious to have the Bourmediene decision perpetuated in new Supreme Court cases. It is easy to see why. The post-9-11 fear of terrorism still holds sway over ordinary citizens and the federal government alike. Congress strongly opposed Obama’s efforts to have Guantanamo prisoners relocated to U.S. prisons and tried in civilian court. Right now, more than 700 prisoners remain at Guantanamo Bay. It would be encouraging if the Supreme Court would step in and inject a little sanity.

Overall, there are many things to be proud of in our response to the 9-11 attacks. People sacrificing themselves to save others was a common story. If only we could always keep that generosity of spirit and not give into our darker side. The past several years, government authority has been growing in the name of “safety,” including everything from auto searches and seizures to Internet policing for cyber crimes. Travelers are subjected to more extreme security measures, such as full body scans at airports, resulting in increasing invasion of privacy. At least another Bourmediene might be a rational response to fear-based Government behavior which has resulted in a denial of basic Constitutional rights not just to prisoners held in Guantanamo, but to the average American citizen.