The Supreme Court gets a reality check in the Guantanamo cases.

Oral argument from the court.
Dec. 5 2007 8:30 PM

It Was the Best of Habeas, It Was the Worst of Habeas

The Supreme Court gets a reality check in the Guantanamo cases.

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If the rule of law were a religion, habeas corpus would be the first commandment.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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 Statesis 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.

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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.

What hasn't changed in all these six years is that not one detainee has been convicted at a trial before the military tribunals that operate at Guantanamo. The administration still asserts, as it always has, that the detainees are treated "humanely," and yet the evidence of torture and abuse at Guantanamo has become unequivocal. The administration also still claims that the detainees at Guantanamo have rights—great heaping armloads of unprecedented rights. Except, six years later, it's clear (PDF) that the legal proceedings set up at Gitmo in the wake of Rasul, the so-called Combatant Status Review Tribunals (PDF), mostly give prisoners the "right" to be tried by a judge who answers to the military; the "right" to be tried with evidence obtained by torture; the "right" to be presumed a terrorist from the outset; the "right" to be tried without a lawyer present; and the "right" to be tried with evidence that's sloppy, inaccurate, and classified.

If those are rights, ladle me up some of them wrongs.

A detainee at Guantanamo Bay. Click image to expand.
Guards escort a Guantanamo detainee to a hearing

As Seth Waxman, here representing six Algerians arrested in Bosnia in 2001 and exonerated by Bosnian judges but still languishing at Guantanamo, suggests in his powerful rebuttal this morning (PDF), these hearings are fatally flawed. One detainee went through a CSRT unable to defend himself from government allegations that he associated with a suicide bomber. Finally, he made it to a real federal court on a habeas petition. "Within 24 hours" of reading the government's claims against him, says Waxman, "his counsel had affidavits not only from the German prosecutor but from the supposedly deceased [suicide bomber] … a resident of Dresden never involved in terrorism." It's not just that the CSRTs are an inadequate substitute for a habeas hearing before a neutral judge. It's that they seemingly exist to turn flimsy secret evidence into irrevocable legal fact. They aren't an "expansion" of the basic rights due our prisoners, as Solicitor General Paul Clement said numerous times this morning. They are actually worse than no rights at all.

Oral argument happens in two time frames today. In one, Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito fiddle with the reception on the time machine, pondering cases that are hundreds of years old. In the other, five different justices seem convinced that six long years of inaction at Gitmo is quite enough.

The first half of oral argument is largely taken up with the court's conservative bloc fretting about whether the case law of centuries past supports habeas claims from foreigners held by the United States outside the country. As Justice Scalia demands (many, many times) of Waxman:"Do you have a single case in the 220 years of our country or, for that matter, in the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England?" Waxman does his best to mollify Scalia. But the justice continues to demand, in essence, that Waxman produce legal support for the proposition that "prisoners on a tropical island we rent but don't own" have a common law right to habeas.

Because, like that happened all the time in 15th-century England. …