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Clement on the Crazy Train

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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May 24, 2007

SCOTUSblog has this highly complex, but nicely written, rundown of the government’s new argument in a case called In re Ali (meaning, for all you, ahem, non-law types, “In the matter of Ali”), which involves the habeas petition of a Chinese Muslim held at Guantanamo, filed directly with the Supreme Court (the significance of that last detail will become clear in a second).The government’s argument in this case is highly notable, and particularly insidious. And I use that adjective with deep fear of understatement. Let me give you a little bit of background.Since passage of the 1789 Judiciary Act, which put the muscles and tendons on the skeletal judicial framework in the American Constitution, the Supreme Court has had the jurisdiction to hear “original” writs of habeas corpus. Now, what does that mean? Remember the other day when I described the “Tower of London” habeas, the notion that habeas can be used exclusively to review the legal and factual basis for an individual’s detention without any prior action by a court, etc.? That’s generally why you would bring an “original” writ for habeas relief to the Supreme Court. It’s also sort of a last resort for state or federal prisoners challenging their convictions. And, it’s almost never granted.Let me give you a hypothetical. Let’s say you witness Tony Soprano whack somebody. You’re scared. You realize that if you testify in his case you’re almost certainly going to be bedding down with the fishes. In certain situations, the government actually has the authority to detain you as a “material witness” to compel your testimony and ensure your presence for trial. It does so. You can, hypothetically, bring an “original” petition for a writ of habeas corpus under Title 28, Section 2241 of the United States Code (like, the official law of the land) directly to the Supreme Court, which may order your release itself.Now, this “original” habeas power—the Tower of London habeas—hasn’t been used since the olden days. But, it figured prominently in a big legal battle back in the 1990s. In 1996, conservatives in Congress finally succeeded in narrowing the availability of habeas for prisoners here in the United States, which had been clarified and expanded by the Supreme Court, largely in response to the advances of the civil rights era.In the 1996 law, Congress barred the Supreme Court from reviewing certain appellate court decisions denying habeas relief (that’s a highly simplistic description of what it did, but I’m just giving you the bare bones here). This could have posed a serious constitutional problem—for reasons that I won’t get into—if it completely blocked all Supreme Court habeas review for a federal or state prisoner in the particular scenario envisioned in the law (involving “successive” habeas petitions).But, and here’s the rub, the Supreme Court said it was okay because that prisoner could still file an “original” writ (even though they’re never granted), and by doing so, avoided the constitutional problem.That case (called Felker v. Turpin, for all those who want to torture themselves with the finer points of habeas law), was highly controversial in its own right.Yet, the government is now taking it to crazy town.Solicitor General Paul Clement argued that the Military Commissions Act completely strips all Supreme Court jurisdiction to hear habeas petitions from the detainees down in Gitmo. That authority hasn’t ever been challenged since 1789—not during any other national security crisis this country has ever faced.Aside from the legal minutiae, the bottom line is this: this is bonkers, both on the particulars, and because it demonstrates just how extreme the administration’s positions have been on post-9/11 detention authority. We’re in a perpetual war against an undefined enemy, they say, and that means the president, and the president alone, has the power to imprison whomever he (or she) likes until the “end” of hostilities, or to try them without meaningful civilian review.Normally, I’d use an expletive at this point, but I’ll control myself. Check out the SCOTUSblog rundown; good, and frightening, reading.

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