Guantánamo and the Supreme Court: The Most Important Habeas Corpus Case in Modern History

from HuffPost:




Andy Worthington
Guantánamo and the Supreme Court: The Most Important Habeas Corpus Case in Modern History
Posted December 4, 2007 | 01:05 PM (EST)



As the Supreme Court prepares once more to consider whether the detainees at Guantánamo have habeas corpus rights - a cornerstone of civilization and a principle established 800 years ago in England, giving prisoners the right to challenge the basis of their detention in court - Andy Worthington looks at the key arguments in what Law.com has described as "perhaps the most important habeas corpus case in modern history."

On December 5, the nine justices of the Supreme Court will hear arguments from the government, represented by a team led by US Solicitor General Paul D. Clement, and from lawyers for the detainees, whose cases - Al Odah v. United States and Boumediene v. Bush - will be put forward by Seth P. Waxman, a former US Solicitor General, who is now a partner in the law firm Wilmer Cutler Pickering Hale and Dorr.

At stake is whether or not Congress acted unconstitutionally in passing the Military Commissions Act of 2006 (MCA), which established Military Commissions to try "enemy combatants" held at Guantánamo, and also stripped the US courts of their right to hear habeas corpus petitions filed by the Guantánamo detainees.

The MCA was itself a response to two previous Supreme Court decisions: Rasul v. Bush, in June 2004, and Hamdan v. Rumsfeld, in June 2006. In Rasul v. Bush, the justices ruled, by a majority of 6-3, that the Guantánamo prisoners had the right to challenge the legal limbo in which they were held, and demolished the administration's long-cherished belief that Guantánamo - which was specifically chosen as the venue for a "War on Terror" prison because it was presumed to be beyond the reach of the US courts - did not count as US territory. "They are not nationals of countries at war with the United States," the judges declared, "and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control."

In his majority opinion, Justice John Paul Stevens emphasized the importance of habeas corpus, citing a 1945 case in which it was described as "a writ antecedent to statute ... throwing its roots deep into the genius of our common law," and a 1953 case dealing specifically with the detention of aliens in US custody: "Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint." .....(more)

The complete piece is at: http://www.huffingtonpost.com/andy-worthington/guantanamo-and-the-supre_b_75283.html