ACLU Legal Director Steve Shapiro on the Boumediene Decision

Our Legal Director, Steve Shapiro, comments on the Boumediene decision:

Today's decision forcefully repudiates the essential lawlessness of the Bush administration's failed Guantánamo policy. It should also mark the beginning of the end of the military commission process, which permits the use of coerced evidence and hearsay and thus cannot survive the constitutional scrutiny that today's decision demands. It is time to close Guantánamo, end indefinite detention without charge and restore the rule of law.

Salon's Glenn Greenwald, a Friend-of-the-ACLU (and Membership Conference speaker!), has posted his analysis of the Supreme Court's Boumediene decision.

In upholding the right of habeas corpus for Guantanamo detainees, the Court found that the "Combatant Status Review Tribunals" process ("CSRT") offered to Guantanamo detainees — established by the John-McCain-sponsored Detainee Treatment Act of 2005 — does not constitute a constitutionally adequate substitute for habeas corpus. To the contrary, the Court found that such procedures — which have long been criticized as sham hearings due to the fact that defendants cannot have a lawyer present, government evidence is presumptively valid, and defendants are prevented from challenging (and sometimes even knowing about) much of the evidence against them — "fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review." Those grave deficiencies in the CSRT process mean that "there is considerable risk of error" in the tribunals' conclusions.

The Court's ruling was grounded in its recognition that the guarantee of habeas corpus was so central to the Founding that it was one of the few individual rights included in the Constitution even before the Bill of Rights was enacted.

…In ruling that the CSRTs woefully fail to provide the constitutionally guaranteed safeguards, the Court quoted Alexander Hamilton's Federalist No. 84: "The practice of arbitrary imprisonments, in all ages, is the favorite and most formidable instruments of tyranny." It is that deeply tyrannical practice — implemented by the Bush administration and authorized by a bipartisan act of Congress — which the U.S. Supreme Court, today, struck down.

You can listen to Glenn speak at the Membership Conference about the abuse of executive power in this podcast.

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maybe the aclu@and the supreme court should be paying for these peoples defense.and not the american for there rights maybe you lawyers and this braindead court should go over there and see what kind of rights they will give you.


americans are going to get killed becase of this ruling

G. Herald

In this country it is supposed to be "innocent until proven guilty" not guilty until proven innocent!!! Hey, I want my liberties!!!Not a nazi state!!!!!


If we forget the past we are doomed to repeat it. Alexander Hamilton and the Founding Fathers created that great document that began democracy. If democracy dies so will all freedoms; tyranny will reign. We must regain the respect of the world and againd lead by example, not by fear.

Joseph Baker

Many people have claimed that the Boumediene decision "restored" the right of habeas corpus to detainees. However, a more accurate description would be that this ruling INVENTED the right, seeing as though such a right did not exist before Thursday. Despite 70 pages worth of opinion (and three extra thrown in by Souter's concurrence)the majority failed to cite a single case in which the Court previously held that alien combatants detained abroad in territory over which the United States has no formal sovereignty possessed habeas privileges. The majority also conceded that there was no common law precedent for extending such a right. In such an instance, where there is no case law or common law precedent, how can the Court have possibly ruled that detainees held in the sovereign territory of Cuba have full protection of habeas corpus? This is especially troubling given that the Court in Eisentrager had held unequivocally that such habeas privileges did not extend to aliens held in areas outside of legal U.S. sovereignty. What we have is a true tragedy. 5 unelected judges, going against firmly established precedent and the firm legal reasoning of TWO lower courts, in granting unprecedented Constitutional protection to enemy detainees in a time of war. While you may believe that detainees should have habeas privileges, that does not mean that such privileges are required under the Constitution. These 5 judges substituted their own personal beliefs for the traditions and precedents of the institution they were appointed to serve. They have a nerve to talk about the importance of the separation of powers, given their extra-judicial actions in this ruling.


The ACLU and the Supreme Court have just given islamic extremist terrorists more rights than the Nazis had after WWII. The precedent was set in 1950 regarding alien combatants and their detainment. The Bush administration even consulted the Justice Dept. prior the Global War on Terrorism in regards to enemy combatants. I guess the ACLU just got tired of picking on the Boy Scouts and upholding a woman's right to murder babies. Better rest up for gay marriage in the U.S. Supreme Court. When they uphold it be ready for the polygamists to argue their case with the gay marriage precedent. I have an idea, why don't you sue the government to destroy that aweful document known as the U.S. Constitution and give the ACLU the right to write their own? That way you would truly be a service to all us dumbies that are too stupid to understand the Constitution and correct all the mistakes that our founding fathers made in the first place. Oh and I just wanted to make sure that my comment had the word God in it to really tick you all off. I'm sure you'll take it out later, since that's what you all do best.


The ACLU consists of a bunch of lawyers. That this organization supports a radical decision by a bunch of other lawyers is no surprise.

But be aware of a fool's logic; This will inevitably lead to mirandizing of terrorists on the battlefield. Perhaps a new US Army job: combat attorney? idiots.

We have THREE independent branches of government. This just another power grab by lawyers side of that balance. We ELECT presidents and legislators to guide our country, NOT lawyers. This never-ending tilting towards socialism imposed by judicial fiat must stop.

The five leftists on this court invented a right that has never existed. Our military has a separate legal system, and is bound by restrictions as determined by the president and the congress. This decision leads to utter chaos on the battlefield.

My dad told me once "if someone breaks into your house, and you must shoot them, make sure you kill them, otherwise the criminal will get the ACLU to sue you and take your house from you."

If we give these terrorists "habeas corpus", which means literally to provide the body, then can't they request the accusers be present at trial?? And aren't the "accusers" going to be soldiers? Seems awfully stupid to me.

Finally, I did read Kennedy's decision...and I agree with the earlier poster; not only is there no precedent for it, there are actually many AGAINST it. Kennedy seems to be willfully blind to this. That is what I would call intellectual dishonesty.

I am not a lawyer.. just a concerned regular American.

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