• Detainees win High Court victory
     | June 13,2008

    MONTPELIER – The U.S. Supreme Court ruled Thursday that terrorism suspects held at Guantanamo Bay, Cuba, have the constitutional right to appeal their detention in civilian courts.

    The decision, one in a series of setbacks delivered by the court to the Bush administration over such policies, will likely have a major impact on the detainees in the U.S. Navy base on the island – including several represented by Vermont lawyers.

    The ruling may be just as important for Americans at large, said Sen. Patrick Leahy, D-Vt.

    "I was ready to jump up and down" after learning of the decision, said Leahy, chairman of the Senate Judiciary Committee. "It tells some of our leaders we are not going to cringe in fear and walk away from bedrock American values. We are too great a nation for that."

    Robert Gensburg of St. Johnsbury is an attorney for one of the Guantanamo detainees.

    The decision means that at some point his client will get a chance to hear in a civilian court why the U.S. government has held him —- and dispute those charges.

    "This means quite clearly the Supreme Court has said the U.S. District Court has to start hearing our habeas cases, including my client's," Gensburg said. "They have been pending for years and years now."

    "I have no idea what order they are going to take these in," said Gensburg. His habeas corpus petition asking for a hearing for his client was among the first of those cases and was filed in 2005. But that does not mean his will necessarily be among the first to be heard, Gensburg said. "All of a sudden they have like 200 of these high profile cases they are going to have to hear," he said. "The government is going to have to disclose why it is imprisoning my client."

    "The problem is not Guanatanamo," Gensburg said. "The issue is the way the government is treating these prisoners."

    "The government is O for 5 in the proposition it doesn't have to abide by the law in these cases," Gensburg added.

    Another St. Johsbury attorney, David Sleigh, also represents a Guantanamo detainee.

    The question the U.S. Supreme Court justices were ruling on was whether, after the 2006 Military Commission Act, detainees at Guantanamo still have the right to bring habeas corpus petitions (that is asking for a hearing on their detention) to civilian courts.

    Earlier this year, Burlington attorney Robert Rachlin, who represents one Guantanamo detainee and the family of another, said Justice Anthony Kennedy was likely to be the deciding vote on the court.

    That prediction came true, and Kennedy wrote the majorities' opinion in the case.

    "The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled," Kennedy wrote in his opinion. "And in our system they are reconciled within the framework of the law."

    The more conservative members of the court, including Chief Justice John Roberts and Antonin Scalia, disagreed.

    "Most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner," Scalia wrote in his dissenting opinion. "The Nation will live to regret what the Court has done today."

    Leahy said the most important aspect of the decision is not about the detainees, but about the country.

    "It does not mean the Supreme Court is suddenly pro-terrorist. It means the Supreme Court has actually read the Constitution," Leahy said.

    But President George Bush said he disagreed strongly with the court's decision. Instead, the dissenting justices got it right, he said according to news reports.

    "That dissent was based upon their serious concerns about U.S. national security," Bush said.

    Now it is up to the Senate and House to pass legislation affirming the decision, Leahy said. He and Sen. Arlen Specter, R-Pennsylvania, offered such legislation in 2007, but it was blocked by a filibuster despite gaining 54 votes, Leahy said. A total of 60 votes were needed to overcome the Republican opposition to the measure.

    Leahy said the question of whether the Guantanamo detainees should have the right to the courts under the U.S. Constitution reminds him of the Communism scare of his childhood and Sen. Joseph McCarthy, Leahy said.

    "It was Ralph Flanders, probably the most significant Vermont senator of the 20th Century, who stood up and stopped that," Leahy said.

    "It is not a victory for people being held in Guantanamo as much as it is a victory for Americans, for all of us," Leahy said of the court's ruling.

    "It is also a signal which is far overdue to send to the rest of the world. That America, which has always had a justly deserved reputation for protecting the rights of people on its soils, still has that," Leahy said.

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