Nor did the Supreme Court prove receptive to President Bush’s claim of authority to disregard laws and treaties and to suspend constitutional protections of individual liberties. In a series of decisions, the Court reaffirmed the rule of law both for American citizens and for foreigners held prisoner by the United States.
The first cases were decided in 2004. In Rasul v. Bush, the Court allowed a British citizen held at Guantanamo Bay, Cuba, to challenge his incarceration in federal court. In Hamdi v. Rumsfeld, it considered the lawsuit of Yasir Hamdi, an American citizen who had moved to Saudi Arabia and been captured in Afghanistan. Hamdi was imprisoned in a military jail in South Carolina without charge or the right to see a lawyer. The Court ruled that he had a right to a judicial hearing. “A state of war,” wrote Sandra Day O’Connor for the 8-1 majority, “is not a blank check for the president when it comes to the rights of the nation’s citizens.” Even Justice Antonin Scalia, the Court’s most prominent conservative, rejected the president’s claim of authority to imprison a citizen at will as antithetical to “the very core of liberty.” After claiming in court that Hamdi was so dangerous that he could not even be allowed a hearing, the administration allowed him to return to Saudi Arabia on condition that he relinquish his American citizenship.
By the time the next significant case, Hamdan v. Rumsfeld, came before the Court in 2006, President Bush had appointed two new justices—Chief Justice John Roberts, to replace William Rehnquist, who died in 2005, and Samuel Alito Jr., who succeeded the retiring Sandra Day O’Connor. The Court was clearly becoming more conservative. But in June 2006, by a 5-3 margin (with Roberts not participating because he had ruled on the case while serving on an appeals court), the justices offered a stinging rebuke to the key presumptions of the Bush administration—that the Geneva Conventions do not apply to prisoners captured in the war on terrorism, that the president can unilaterally set up secret military tribunals in which defendants have very few if any rights, and that the Constitution does not apply at Guantanamo. Congress, the majority noted, had never authorized such tribunals, and they clearly violated the protections afforded to prisoners of war by the Geneva Conventions, which, the Court declared, was the law of the land.
Like the Nixon tapes case of 1974, the decision was a striking illustration of the separation of powers envisioned by the Constitution’s framers, an affirmation that the courts have the right and responsibility to oversee actions by the president. However, it was unusual that the decision came in wartime. The Court had upheld jailings under the Sedition Act in World War I, and Japanese internment in World War II. Previously, the Court had only exerted its oversight authority once peace arrived. But Bush’s claims of presidential authority had been so sweeping that a judicial reaction was all but inevitable.
As the “war on terror” entered its sixth year later in 2006, the scope of the president’s power to detain and punish suspects outside of normal legal procedures remained unresolved. In September 2006, in response to the Hamdan decision, Congress enacted a bill authorizing the establishment of special military tribunals to try accused terrorists and giving the president the authority to jail without charge anyone he declared to be an “illegal enemy combatant.” The measure authorized certain kinds of harsh treatment of prisoners, with evidence obtained dining coercive interrogations usable in these new courts, and stripped detainees in military prisons of the right to challenge their detention in federal courts. Many military lawyers objected strongly to these provisions, as did other army officials, fearing that captured U.S. soldiers might be subjected to the same treatment. It remained to be seen whether the Supreme Court would allow Congress to override the Geneva Conventions and eliminate judicial oversight of the treatment of prisoners.
In June 2008, for the third time in four years, the Supreme Court rebuffed the Bush administration’s strategy of denying detainees at Guantanamo Bay the normal protections guaranteed by the Constitution. Written by Justice Anthony Kennedy, the 5-4 decision in Boumediene v. Bush affirmed the detainees’ right to challenge their detention in U.S. courts. “The laws and Constitution are designed,” Kennedy wrote, “to survive, and remain in force, in extraordinary times.” Security, he added, consists not simply in military might, but “in fidelity to freedom’s first principles,” including freedom from arbitrary arrest and the right of a person to go to court to challenge his or her imprisonment.