supreme court dispatches
It Was the Best of Habeas, It Was the Worst of Habeas
The Supreme Court gets a reality check in the Guantanamo cases.
By Dahlia Lithwick
Updated Wednesday, Dec. 5, 2007, at 8:30 PM ET
If the rule of law were a religion, habeas corpus would be the first
The right to have the state justify anyone's incarceration is so
fundamental—dating back centuries to the Magna Carta—that in this
country it's protected by statute, by the Constitution, and at common
law. Today's oral argument in Boumediene v. Bush and Al Odah v. United
States is about nothing less than whether the Bush administration's war
on terror—endless in its geographic reach and indefinite across
time—will become the instrument of the great writ's demise.
The question the court must answer is whether Congress properly stripped
the remaining 300-and-some detainees at Guantanamo Bay of their right to
go before a neutral judge and challenge their detention. If that feels
familiar, it's because we've heard this fight before in Hamdan v.
Rumsfeld (2006). And also before that in Rasul v. Bush (2004). What's
changed is that Congress, by enacting the 2006 Military Commissions Act
(PDF), joined President Bush in the family habeas-stripping business.
Now the president and the legislature together are telling federal
courts to stay out of the executive's decisions about who gets detained
where and on what charges. Rasul gave detainees a statutory right to
habeas corpus. The MCA erased it. Hamdan struck down the president's
military tribunals. Congress reinstated them. The Bush administration
keeps winning by losing. The question is whether the third time's a charm.
A lot has changed since the president first gave himself the authority
to seize and hold "enemy combatants" on a lawless little hunk of Cuba.
For instance, justices who used to complain, "It's been two years!" at
oral argument can now say, as does Justice Stephen Breyer, "It's been
six years!" And whereas the only precedents available to the justices in
2004 were World War II cases, today we have the court's 2004 ruling in
Rasul, which—as several justices note today—seems to decide much of the
present case in favor of the detainees.