Politics in the USA, Sixth Edition

The making of American domestic policy 253

those prisoners, not American citizens, who are being held at Guantánamo
Bay, which is not on American soil. In a treaty of 1903 Cuba gave the United
States a perpetual lease over the base and ‘full jurisdiction’ over it, although
the ultimate sovereignty of Cuba continued to be recognised. In 2004, in the
case of Rasul v. Bush the Supreme Court handed down another significant
decision. By a majority of six to three the Court held that the prisoners in
the Guantánamo Bay camp came under the jurisdiction of the United States
courts, irrespective of their nationality. (Shafiq Rasul, a British citizen, had
been transferred to Britain and released before the Supreme Court decided
the case.) The majority opinion, written by Justice Stevens, stated that ‘The
fact that petitioners are being held in military custody is immaterial.’ Thus
the Court opened the door to the possibilty of hundreds of habeas corpus
petitions from the Guantánamo prisoners. Although there was no way of
knowing what the consequences would be for individual prisoners, they were
presumably entitled to be heard in open court to challenge the accusations
made against them. However, the situation was immediately complicated by
legislation passed by Congress shortly after the Court’s decision in Rasul v.
Bush. The Detainee Treatment Act, 2005, was a compromise between those
Republicans who wish to outlaw torture in American prison camps, and those
who want to prevent the courts from reviewing the right of the government
to hold enemy combatants without trial. The Act provided that:

No court, justice, or judge shall have jurisdiction to hear or consider an

application for a writ of habeas corpus filed by or on behalf of an alien

detained by the Department of Defense at Guantanamo Bay, Cuba; or

any other action against the United States or its agents relating to any

aspect of the detention by the Department of Defense of an alien at

Guantanamo Bay, Cuba.

As a result, hundreds of habeus corpus applications that had been submit-
ted by prisoners were held up. Nevertheless, the Supreme Court agreed to
hear the case of Hamdan v. Rumsfeld involving the detention of an alleged
aide to Osama bin Laden, and its decision was handed down in June 2006.
When denying the application of the Geneva Convention to the detainees,
President Bush had set up a system of military commissions to try them for
alleged offences. He had done so on his authority as commander-in-chief,
without consulting Congress. The procedures to be adopted by the commis-
sions would be laid down by the president without adhering to the normal
rules of procedure of civil or military courts. In its decision, by a five-to-three
majority, the Court ruled that the military commissions were illegal because
they violated both federal law and the Geneva Convention. ‘The Executive
must comply with the prevailing rule of law,’ the Court stated. Justice Breyer
in a concurring opinion said:

The Court’s conclusion ultimately rests upon a single ground: Congress

has not issued the Executive a ‘blank check.’ Indeed, Congress has denied