US Constitution, Article I, Section 9: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
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 Boumedine 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.
Over at the American Prospect, Scott Lemieux speculates on how a six-vote coalition (only four votes are needed to ensure a case is heard) might have arisen to deny the cases, and comes to a grim conclusion: “Either way, as of now Boumediene has essentially be reduced to an empty shell, holding out a promise of constitutional protections the federal judiciary has no intention of actually fulfilling.”
Wheeler gives some examples of just what this means:
Consider what SCOTUS just blessed:
- Holding a person indefinitely for being in the wrong place at the wrong time-including a school, a road, and a guest house-where suspect people are.
- Holding a person indefinitely based on an admittedly error-ridden report the government wrote up itself.
- Holding a person indefinitely based on pattern analysis.
- Completely upending the role of District Court judges in the fact-finding process