Military Commissions Act Is Unconstitutional Suspension of Writ

Slate's blog on legal issues.
June 12 2008 11:01 AM

Military Commissions Act Is Unconstitutional Suspension of Writ

The much-anticipated Boumediene decision by the Supreme Court is out—and on first, very quick read looks like a large victory for the Guantanamo detainees. Among other things, the court seems to conclude full habeas corpus hearings in the federal district court should proceed without delay. Here's one key excerpt (and more enlightened discussion no doubt to follow).

The Government argues petitioners must seek review of their CSRT determinations in the Court of Appeals before they can proceed with their habeas corpus actions in the District Court. As noted earlier, in other contexts and for prudential reasons this Court has required exhaustion of alternative remedies before a prisoner can seek federal habeas relief. ... The cases before us, however, do not involve detainees who have been held for a short period of time. ... Were that the case, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. These qualifications no longer pertain here. In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. And there has been no showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions. To require these detainees to complete [MCA] review before proceeding with their habeas corpus actions would be to require additional months, if not years, of delay. The first [MCA] review applications were filed over a year ago, but no decisions on the merits have been issued. While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.

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