Detention of a person on suspicion without trial is an anathema to the Rule of Law. However, extraordinary situations require extraordinary measures. Preventive detention laws exist in several countries including India, where a detainee is not without a remedy. He can make a representation to an advisory board of sitting and retired High Court judges. If this is rejected, he can file a writ petition for habeas corpus in the High Court or Supreme Court. Detainees can engage their own lawyers, and courts have often ordered their release in appropriate cases.
Post 9/11, the US indefinitely detained at Guantanamo Bay in Cuba, suspected terrorists labelled ‘enemy combatant’ by the Department of Defence. This was an attempt to place the detainees beyond the reach of US courts, and conditions of detention were humiliating. The US Supreme Court (SC), by its judgments in Hamdi vs. Rumsfeld and Rusul vs. Bush, granted partial relief to the detainees. The climax came with the SC’s judgment last week in Boumediene vs. United States of America. It ruled that the US Naval Station at Guantanamo Bay is not beyond its reach, and the writ of habeas corpus is available to aliens detained at Guantanamo Bay, and designated enemy combatants by Combatants Status Review Tribunal (CSRT). A few of them were detained for six years without any judicial determination about the legality of their detention. The detainees denied that they were members of the Taliban or al-Qaeda and sought a writ of habeas corpus in the district court which was declined on ground of lack of jurisdiction. The D.C. Circuit confirmed this but the SC reversed it, rejecting the government’s contention that the detainees have no right to habeas corpus because of Cuban sovereignty over Guantanamo Bay, the US having disclaimed formal sovereignty by its 1903 lease with Cuba.
The Court accepted Cuban sovereignty but pointed out the unqualified control by the US over Guantanamo Bay for over 100 years, and by the lease with Cuba “the nation’s basic charter cannot be contracted away.” The Court emphasised the role of habeas corpus as an instrument for protection of basic liberties, a constitutional right and remedy that may be suspended only when public safety requires it. The Court observed that “to hold that the political branches may switch the Constitution on or off at will would lead to a regime in which the executive and not the courts assess ‘what the law’ is.”
Another government plea was based on the Detainees’ Treatment Act of 2005 which provides that no court, justice or judge shall have jurisdiction to consider an application for habeas corpus filed by an alien detained at Guantanamo Bay and gives the District Court of Appeal “exclusive jurisdiction to review the decision of CSRT.” This procedure was maintained by the US as a substitute for habeas corpus. The majority rejected this plea saying: “The detainee has limited means to present evidence to challenge the government’s case, does not have the assistance of counsel, may not be aware of the most critical allegations that the government relied upon to order his detention and his opportunity to confront witnesses is likely to be more theoretical than real given that there are no limits on admission of hearsay evidence.” The Court concluded that the prescribed procedure was not an effective remedy for the detainees.
The government also relied on the Military Commissions Act, 2006, which denied jurisdiction with respect to habeas corpus action by detainee aliens classified as enemy combatant relating to their detection, transfer, treatment, trial or conditions of confinement. No wonder Guantanamo Bay has been described as the ‘black hole’ of the US. Fortunately, the SC rejected the government’s claim and held that detainees are not barred from seeking recourse under habeas corpus, unless it is constitutionally suspended, merely because they have been designated as enemy combatant or because of their presence at Guantanamo Bay.
The majority judgment is a severe blow to the Bush administration, and has triggered dissenting opinions. Chief Justice Roberts, a Bush nominee, castigated the majority and opined that it did not enhance the Rule of Law “unless by that is meant the rule of lawyers who will now arguably have a greater role than military and intelligence officials in shaping policies for alien enemy combatant.” The Chief Justice bemoaned that by the majority judgment the Americans would “lose a bit more control over the conduct of the nation’s foreign policy to unelected politically unaccountable judges.” Justice Scalia derided the majority opinion as “an inflated notion of judicial supremacy.” In my view, the correct perspective is of Justice Kennedy who, speaking for the majority, observed that in adjudging detention imposed to prevent acts of terrorism “the courts must accord appropriate deference to political branches” always keeping in mind that “security subsists, too, also in fidelity to freedom’s first principles, chief among them being personal liberty and freedom from arbitrary and unlawful restraint.”
The majority judgment is a heartening assertion of judicial authority and independence in the face of outrageous claims of the executive and is a courageous vindication of the Rule of Law.
Soli J Sorabjee is former Attorney-General of India