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The Education of George W. Bush

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By Dan Froomkin
Special to washingtonpost.com
Thursday, June 12, 2008; 1:25 PM

President Bush's slow and painful schooling in constitutional law continued today as the Supreme Court ruled for the third time in four years that he had violated a basic precept of the American legal system.

The court ruled 5-4 that Bush cannot deny prisoners at Guantanamo Bay the right to challenge their detentions in federal district court. Some of them have been held already -- without charges -- for more than six years.

Justice Anthony Kennedy, writing for the court, determined that the prisoners in the U.S.-run facility "have the constitutional privilege of habeas corpus. . . ."

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law," Kennedy wrote.

The ruling does not force the closing of Guantanamo, but it could push the Bush administration toward that decision -- although the actual closing would almost certainly occur in the next administration.

Consider how Sue Pleming wrote for Reuters last month that senior U.S. officials were already anticipating a possible rebuff from the court.

"If the Supreme Court concludes that the detainees have constitutional rights, then there would be little legal difference between holding them in Guantanamo or holding them on the (U.S.) mainland," Pleming quoted a senior official as saying at the time. "It's possible the Supreme Court decision could provide an impetus to a policy decision to close Guantanamo."

The Supreme Court decision was close -- one vote made the difference. And the dissent was bitter. Mark Sherman writes for the Associated Press: "In dissent, Chief Justice John Roberts criticized his colleagues for striking down what he called 'the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.'

"Justices Samuel Alito, Antonin Scalia and Clarence Thomas also dissented.

"Scalia said the nation is 'at war with radical Islamists' and that the court's decision 'will make the war harder on us. It will almost certainly cause more Americans to be killed.'"

The court has ruled twice before that prisoners at Guantanamo have the right to judicial review -- or, as Todd S. Purdum wrote in the New York Times, "that in the United States, even in wartime, no prisoner is ever beneath the law's regard, and no president above its limits."

In June 2004, Supreme Court Justice Sandra Day O'Connor wrote: "A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." In June 2006, the court ruled that that a provision of the Geneva Conventions known as Common Article 3 applied to the Guantanamo detainees. The provision prohibits trials except by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people."


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