JURIST Guest Columnists Lt. Col. Stephen Abraham and Judge William S. Sessions say that the recent ruling by the US Supreme Court in Boumediene v. Bush not only restores the delicate balance of power between the three branches of government but ensures a meaningful judicial review of detentions that can separate detainees who are dangerous and rightly being held from those who were simply in the wrong place at the wrong time….

Last Thursday, in the case of Boumediene v. Bush, the United States Supreme Court finally put to rest the odious notion that a president, like a monarch or dictator, has the unchecked power to lock people up and throw away the key on his or her say-so alone. The affirmation of the right to habeas corpus — or the right to challenge one’s detention before an independent judge — is a resounding victory for all who will ever seek the firm and fair justice that is the hallmark of America’s courts.

Delivering the opinion of the Court, Justice Anthony Kennedy wrote that “security subsists…in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.” We could not agree more. As individuals who have served at the highest levels of law and government, we cannot help but believe that the restoration of one of the great principles on which our country was founded marks the beginning of the end of a dark period in American history.

The foundation of checks and balances upon which our nation was built was dangerously undermined with the passage of the Military Commissions Act of 2006. By stripping federal courts of the authority to hear challenges to the detention of so-called “enemy combatants,” Congress simultaneously neglected its own role as a check on the power of the President and weakened the ability of American courts to intervene when constitutional rights are threatened.

The government’s claim that the prison at Guantanamo Bay was, in essence, a legal vacuum where only the President’s word has power would have been easily disregarded as outrageous had the consequences not been so perilous. The Supreme Court’s recognition that the Constitution applies, even in the depths of the world’s most notorious prison, is a monumental triumph for the world’s greatest democracy

But the action by the Supreme Court did more than restore the delicate balance of power between the three branches of government: meaningful judicial review of detention is fundamental to the process of separating those detainees who are dangerous and rightly being held from those detainees who were simply in the wrong place at the wrong time. Our national security strategy is dangerously misguided when we apply our financial and military resources to the task of guarding both the criminally dangerous terrorists and the innocents. Some have argued that habeas corpus actually undercuts the authority of the Commander in Chief. Quite to the contrary, as Justice Kennedy noted, “the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch.”

In the wars of the last century between uniformed armies, identifying who was the enemy was simply a matter of identifying a flag. Today, identifying those prisoners who are actual threats whom we need to detain and are entitled to detain, is significantly more difficult. Those into whose hands more than 750 detainees have been delivered have failed, even after six years, to perform this task in a constitutionally permissible manner. As a result, we must assume independent judicial review of the detentions to be the only way of ensuring that we have captured those responsible for terrorist attacks and, just as importantly, that the innocent are detained not one day longer.

Many of the detainees have now been held in Guantanamo for more than six years, without any meaningful review of the basis of their detention. The continued detention of hundreds of men without charge has only fed our enemies’ propaganda machines and hampered our long-term efforts to defeat terrorism and promote the rule of law around the world. The Court’s affirmation of the right of these individuals to challenge the factual basis for their detention will allow for full and fair hearings before an independent Federal judge and will begin the long process of restoring America’s reputation as the defenders of freedom wherever it continues to exist in the world.

We have both repeatedly called on Congress to restore the habeas corpus rights they eliminated in the Military Commissions Act. But the time for congressional penitence has long passed, and our elected officials must now resist the temptation to undo the Court’s work through another round of capricious intervention in the review of these cases. Our nation’s judges should be allowed to do their jobs without partisan politics interrupting their efforts at every turn.

Writing for the majority of the Court, Justice Kennedy rejected the argument that “the political branches have the power to switch the Constitution on or off at will.” Congress should pay heed to such an important point, no matter how disconcerting it was that the point had to be made at all.

Lt. Col. Stephen Abraham served with the Office for the Administrative Review of the Detention of Enemy Combatants in 2004 and 2005. He has served in the United States Army Reserve as a military intelligence officer for more than 22 years.

Judge William S. Sessions served as the Chief Judge of the United States District Court for the Western District of Texas and as Director of the Federal Bureau of Investigation. He is a member of the Constitution Project’s Liberty and Security Committee.

Both authors are writing in their personal capacities.
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