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The US supreme court’s two rulings that terrorist suspects held at Guantánamo Bay and in America must have access to the US courts are among the most remarkable in the long history of that famous institution.
The positive implications for the hundreds of internees held by the US across the world have yet to be clarified but will be immense. The chance to argue their cases is almost certain to lead to the release of hundreds of detainees. Already the habeas corpus applications have started to roll in, and the Bush administration seems at a loss as to what to do.
The rulings will go a long way towards restoring the credibility both of the judiciary in the minds of the American public and, more importantly, of the US system of government in the eyes of the world. What the supreme court justices have said will make the shallow metaphor of an unending “war on terror” far harder to sustain, and may even hasten the end of an administration which this very same court effectively appointed nearly four years ago when it stopped the Florida vote recount.
In the first of the two cases, brought in the names of Rasul and Al Odah, two Australian and 12 Kuwaiti citizens challenged their detention in Guantánamo following their capture abroad during hostilities between the US and the Taliban. Their attempt to challenge the legality of their detention before an independent tribunal and to obtain access to counsel floundered in the lower federal courts. The reason was a supreme court decision from 1950 concerning German prisoners who had been captured and convicted of war crimes in China and had then been imprisoned in occupied Germany (Johnson v Eisentrager).
That case appeared to establish unequivocally that aliens detained outside the sovereign territory of the US may not make a habeas corpus application to try to secure their release. It must have been a shock to the administration when the supreme court even decided to take the Rasul and Al Odah cases on, despite such clear authority – the first sign that events in the courtroom were spinning out of control.