Limitando o estado de segurança nos Estados Unidos

O Prof Farlei Martins Riccio envia-nos a última decisão da Corte Suprema Americana a respeito do tratamento dispensado pelo Governo Bush aos inimigos combatentes (categoria não prevista nas Convenções de Genebra) presos na Base de Guantanamo. É importante lembrar que a posição anterior da citada corte, mencionada no texto, era de assegurar um limitado princípio do devido processo legal. Há, assim, uma evolução positiva da jurisprudência do mencionado tribunal americano ao possibilitar o acesso de todos "inimigos combatentes" às Cortes americanas na busca de proteção de seus direitos. Os "dissenters" foram os "de sempre", Scalia, o Chief Justice Roberts, Clarence Thomas e Alito. O texto indica que os "dissenters", a exceção de Scalia reconhecendo o fato dos Estados Unidos estarem em guerra, não justificaram, adequadamente, os seus votos. A decisão da Corte Suprema segue a linha de raciocínio da obra organizada por nós contando com a colaboração efetiva dos doutorandos de Direito da Puc-rio tendo como título "A Constituição e o Estado de Segurança - as decisões do Tribunal Constitucional alemão". Curitiba: Editora Juruá, 2008. Leiam (www.jurua.com.br)! Enquanto, na Alemanha, há uma tensão política por parte de sua sociedade para manter o estado constitucional, cremos que tal não ocorre nos Estados Unidos. Pois, é nossa opinião que a América do Norte está resgatando o seu leito ideológico natural (o liberalismo) diante do esgotamento da reação conservadora advinda desde a era Reagan (1981-1989).

Justices Rule Terror Suspects Can Appeal in Civilian Courts. By DAVID STOUT. Published: June 13, 2008WASHINGTON

Foreign terrorism suspects held at the Guantánamo Bay navalbase in Cuba have constitutional rights to challenge their detention therein United States courts, the Supreme Court ruled, 5 to 4, on Thursday in ahistoric decision on the balance between personal liberties and nationalsecurity."The laws and Constitution are designed to survive, and remain in force, inextraordinary times," Justice Anthony M. Kennedy wrote for the court.The ruling came in the latest battle between the executive branch, Congressand the courts over how to cope with dangers to the country in the post-9/11world. Although there have been enough rulings addressing that issue toconfuse all but the most diligent scholars, this latest decision, inBoumediene v. Bush, No. 06-1195, may be studied for years to come.In a harsh rebuke of the Bush administration, the justices rejected theadministration's argument that the individual protections provided by theDetainee Treatment Act of 2005 and the Military Commissions Act of 2006 weremore than adequate."The costs of delay can no longer be borne by those who are held incustody," Justice Kennedy wrote, assuming the pivotal rule that somecourt-watchers had foreseen.Joining Justice Kennedy's opinion were Justices John Paul Stevens, StephenG. Breyer, Ruth Bader Ginsburg and David H. Souter. Writing separately,Justice Souter said the dissenters did not sufficiently appreciate "thelength of the disputed imprisonments, some of the prisoners represented heretoday having been locked up for six years."The dissenters were Chief Justice John G. Roberts Jr. and Justices Samuel A.Alito Jr., Antonin Scalia and Clarence Thomas, generally considered the conservative wing on the tribunal. Reflecting how the case divided the court not only on legal but, perhaps, emotional lines, Justice Scalia said the United States was "at war withradical Islamists," and that the ruling "will almost certainly cause more Americans to get killed."And Chief Justice Roberts said the majority had struck down "the mostgenerous set of procedural protections ever afforded aliens detained by thiscountry as enemy combatants."The immediate effects of the ruling are not clear. For instance, Cmdr.Jeffrey Gordon, a Pentagon spokesman, told The Associated Press he had noinformation on whether a hearing at Guantánamo for Omar Khadr, a Canadiancharged with killing an American soldier in Afghanistan, would go forwardnext week, as planned. Nor was it initially clear what effects the rulingwould have beyond Guantánamo. The 2006 Military Commission Act stripped the federal courts of jurisdictionto hear habeas corpus petitions filed by detainees challenging the bases fortheir confinement. That law was upheld by the United States Court of Appealsfor the District of Columbia Circuit in February 2007. At issue were the "combatant status review tribunals," made up of militaryofficers, that the administration set up to validate the initialdetermination that a detainee deserved to be labeled an "enemy combatant."The military assigns a "personal representative" to each detainee, butdefense lawyers may not take part. Nor are the tribunals required todisclose to the detainee details of the evidence or witnesses against him -rights that have long been enjoyed by defendants in American civilian andmilitary courts.Under the 2005 Detainee Treatment Act, detainees may appeal decisions of themilitary tribunals to the District of Columbia Circuit, but only undercircumscribed procedures, which include a presumption that the evidencebefore the military tribunal was accurate and complete.In the years-long debate over the treatment of detainees, some critics ofadministration policy have asserted that those held at Guantánamo have fewerrights than people accused of crimes under American civilian and militarylaw and that they are trapped in a sort of legal limbo. President Bush, traveling in Rome, did not immediately react to the court'sdecision. "People are reviewing the decision," Mr. Bush's press secretary, Dana M. Perino, said. The president has said he wants to close the Guantánamo detention unit eventually. The detainees at the center of the case decided on Thursday are not alltypical of the people confined at Guantánamo. True, the majority werecaptured in Afghanistan or Pakistan. But the man who gave the case itstitle, Lakhdar Boumediene, is one of six Algerians who immigrated to Bosniain the 1990's and were legal residents there. They were arrested by Bosnianpolice within weeks of the Sept. 11 attacks on suspicion of plotting toattack the United States embassy in Sarajevo - "plucked from their homes, from their wives and children" as their lawyer, Seth P. Waxman, a formersolicitor general put it in the argument before the justices on Dec. 5.The Supreme Court of Bosnia and Herzegovina ordered them released threemonths later for lack of evidence, whereupon the Bosnian police seized themand turned them over to the United States military, which sent them toGuantánamo.Mr. Waxman argued before the United States Supreme Court that the sixAlgerians did not fit any authorized definition of enemy combatant, andtherefore ought to be released.The head of the New York-based Center for Constitutional Rights, whichrepresents dozens of prisoners at Guantánamo, hailed the ruling. "TheSupreme Court has finally brought an end to one of our nation's mostegregious injustices," Vincent Warren, the organization's executivedirector, told The Associated Press.