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HABEAS CORPUS UNCORPSED
On June 12, the U.S. Supreme Court handed
down its decision in Boumediene v. Bush, a
case involving noncitizens captured abroad
and now detained as enemy combatants in
the heavily fortified, ultra-high-security U.S.
military prisons in Guantanamo Bay, Cuba. The
Supreme Court held that the detainees were
constitutionally entitled to file habeas corpus
petitions in federal district court to raise their
claims that they were not terrorists, that they
had not taken up arms against the United
States, and that they were in fact wholly inno
cent. The Supreme Court did not decide the
merits of these claims; it merely permitted the
detainees to raise and litigate them in federal
habeas corpus proceedings; and it most cer
tainly did not order any detainees released.
In Boumediene, the Supreme Court held
unconstitutional Section 7 of the notorious
Military Commissions Act (or MCA) of 2006.
(The MCA, proposed by President Bush and
enacted on a partisan basis by the Republican-
controlled Congress scarcely a month
before the November 2006 election swept
Republicans from power, is.examined and criti
cized in this writer's article "Habeas Corpse:
The Great Writ Hit," published in Flagpole on
Nov. 15, 2006.) Section 7 had been enacted
for the purpose of overturning a pro-habeas
corpus decision of the Supreme Court. Two
years before enactment of Section 7, the
Supreme Court in Rasul v. Bush construed the
federal habeas corpus statutes and concluded
that those statutes permitted Guantanamo
detainees to file habeas corpus petitions,
rejecting arguments of Bush Administration
lawyers that aliens cannot seek habeas relief
and that the writ of habeas corpus does
not run to Guantanamo. Section 7 of
the MCA responded to Rasul by amend
ing the federal habeas corpus statutes
to specifically provide not only that the
federal courts were no longer permitted
to allow Guantanamo detainees
to file habeas petitions, but that
they were also required to sum
marily dismiss all pending habeas
petitions filed by the detainees prior to
enactnent of Section 7. Never before in
history had Congress attempted such a fla
grant curtailment of the writ of habeas corpus.
The Supreme Court in Boumediene held
that Section 7 was invalid under the Habeas
Corpus Clause of the U.S. Constitution (Article
I, Section 9). Under that clause, the Court
held, Congress cannot by statute prohibit
imprisoned persons from seeking habeas relief
from allegedly unlawful imprisonment merely
because the individuals in custody are aliens
designated enemy combatants by the U.S.
Government, or because they are detained at
Guantanamo.
In addition to striking down an uncon
stitutional statute, the Boumediene decision
reminds us of the "centrality" of habeas cor
pus to the framers by noting that "protection
for the privilege of habeas corpus was one of
the few safeguards of liberty specified in a
Constitution that, at the outset, had no Bill
of Rights... The Framers viewed freedom from
unlawful restraint as a fundamental precept
of liberty, and they understood the writ of
habeas corpus as a vital instrument to secure
that freedom."
Political liberals praise the Boumediene
decision, but the overall response of the
political right has been rabidly hostile. Larry
Thornberry calls Boumediene "supreme coward
ice" and an example of "leftist politics;" John
Yoo labels the ruling as "judicial imperialism
of the highest order;" and Matthew Continetti
blasts the decision thusly: "Unprecedented.
Reckless. Harmful. Breathtakingly condescend
ing." (The courageous voluntary attorneys who
without pay and in the best traditions of the
bar acted as pro bono counsel for the detain
ees have been subjected to similar vitupera
tion from right-wingers. "I'd hang every lawyer
who went down to Guantanamo to defend
those murderers," says Michael Savage.)
The reaction of the leadership of the
Republican Party to Boumediene has been
delusional. John McCain, the 2008 Republican
candidate for president, calls the ruling "one
of the worst decisions in the history of this
country." Former House Speaker Newt Gingrich
says the decision "is the most extraordinarily
arrogant and destructive decision the Supreme
Court has made in its history... Worse than *
Dred Scott... This court decision is a disaster
which could cost us a city."
The anti-civil rights, openly racist Dred
Scott v. Sandford ruling, handed down in
1857, not only triggered the Civil War but
also infamously upheld slavery, treated black
persons as subhumans, and boasted that
blacks had no rights which the white man
was bound to respect. It is universally recog
nized as the worst and most regrettable of all
Supreme Court decisions. The pro-civil liberties
Boumediene
ruling.
in stark con
trast, holds that per
sons claiming innocence yet imprisoned under
harsh conditions and subjected to severe
interrogation practices for up to six years, and
potentially liable to such imprisonment for
the rest of their life, all on the say-so of the
executive branch alone, may litigate in a fed
eral court their claims of innocence.
Boumediene v. Bush reaffirms the precious
ness of the writ of habeas corpus, the Great
Writ, the Freedom Writ, the Writ of Liberty,
by which imprisoned individuals may seek
release by court order if the imprisonment is
illegal. Section 7 of the MCA, together with
other anti-habeas corpus statutes passed in
recent years, posed a grave threat that habeas
corpus, the celebrated and cherished writ
for protecting personal freedom, might be
in the process of being reduced to a corpse.
Boumediene, a surprising decision from a
human rights-unfriendly Supreme Court, sug
gests that perhaps, just perhaps, habeas cor
pus may be on the way to being uncorpsed.
Donald E. Wilkes, Jr.
Donald E. Wilkes, Jr. teaches in the University of
Georgia School of Law.
8 FLAGPOLE COM • JULY 9,2008
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