Monday, June 11, 2012

Remember Habeas Corpus? Remember Boumediene vs. Bush?

Apparently, the DC Circuit Court of Appeals doesn't remember either of those things, and even the Supreme Court's memories are... selective. Here's Ryan Cooper at Washington Monthly:
Back in 2006, Congress passed the Military Commissions Act, which abolished habeas corpus rights for noncitizens, among other things. This part of the law was overturned in 2008 by the Supreme Court in Boumedi[e]ne vs. Bush as unconstitutional.

Today, it looks like the Supreme Court gave up on that line of reasoning. Marcy Wheeler reports:
SCOTUS has just declined to take all seven of the pending Gitmo habeas corpus petitions, including Latif and Uthman.

This effectively kills habeas corpus.
The problem here, as Mother Jones’ Adam Serwer puts it, is that the “conservative judges on the D.C. Circuit have interpreted the law in a way that assumes many of the government’s claims are true and don’t have to be proven in court.” Or as the Center for Constitutional Rights puts it:
Today’s decision leaves the fate of detainees in the hands of a hostile D.C. Circuit Court of Appeals, which has erected innumerable, unjustified legal obstacles that have made it practically impossible for a detainee to win a habeas case in the trial courts. The D.C. Circuit, the country’s most conservative court of appeals, has reversed every detainee victory appealed to it by the government, and as consequence, district courts in D.C. have ruled in favor of detainees in only one of the last 12 cases before them.
(Ryan Cooper offers examples after that.)

This is really bad news. The right of habeas corpus predates the founding of America by several hundred years, and denying habeas is one way to remove a major burden of proof from the government that there is a reason the accused should be detained. It is only a slight stretch to say that detainees denied habeas start out already halfway to "guilty". The Supreme Court has indeed ruled on this matter in Boumediene, but it appears the federal courts, including the Supremes, are going to wink and look the other way at violations against alleged terrorists.

No matter how badly you want a conviction of an actual terrorist, if you accept the tweaking of the most ancient aspects of our system of justice, those tweaks will bite you in the butt someday. Either everyone, citizen and noncitizen, receives due process, or no one, citizen or noncitizen, truly enjoys due process rights. "Splitting the difference" just because it's a terrorism case is, quite simply, un-American.

The most regrettable aspect is that so many Americans... Democrats included; mark my words... are perfectly content to allow this kind of rigging of trials to make sure every alleged terrorist is convicted. I know such a person, a friend of Stella's, a Democrat, a baby-boomer, Jewish; i.e., someone who remembers what happened to Jews in the Holocaust... and she is still just fine with this kind of tampering with justice in terrorism cases.

I predict that all significant due-process rights will be effectively dead no later than the 2016 presidential elections... no matter who is elected President this November. We're screwed.


  1. Without habeas corpus there is no justice in law. Even the English with their long history of harsh justice claimed a fundamental devotion to habeas corpus.

  2. This is disgraceful! Not that I'm surprised. It's just one thing after another -- a series of outrageous actions (and inaction) by the federal courts.

  3. Mad, thirty years of federal judicial appointments... Republicans successfully appointing radical rightists; the one Democratic president prior to Obama appointing centrists, and Obama following suit with centrists... yielded a bench that is as politicized as the so-called "political" branches. Perhaps they do understand what they are doing; if so, they are not merely incompetent but also evil.

  4. karmanot, read the wiki on habeas corpus. It has a looooong history!



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