Habeas Haunts the High Court

By Harvey Silverglate

Sometimes, as Sigmund Freud put it, a cigar is just a cigar. And, likewise, sometimes words in the Constitution actually mean what they say. Much brainpower, however, has been expended trying to argue that the First Amendment, which admonishes that “Congress shall make no law…abridging the freedom of speech, or of the press” [emphasis added], actually doesn’t mean what it appears to say. And, similarly, we are now in the midst of a national (and judicial) debate over whether the Constitution’s protection of the writ of habeas corpus – a cornerstone of the historic rights of Englishmen and of Americans – really means what, in quite clear terms, it says.

Yesterday the Supreme Court heard arguments in the combined cases Boumediene v. Bush and Al Odah v. Gates, which touch on this momentous question: Can the United States government escape the seemingly clear language of the Constitution’s habeas corpus guarantee by shipping people to the gulag at Guantanamo Bay and then providing so-called “combatant status review tribunals,” run entirely by the military, as a supposed substitute for habeas corpus hearings conducted by the federal courts?

Article I, Section 9 of the Constitution seems pretty clear: “The Privilege of the Writ of Habeas Corpus shall not be suspended, except when in Cases of Rebellion or Invasion the public Safety may require it.” Habeas Corpus, under ancient English law inherited and adopted by this country, guarantees that any prisoner has the right and opportunity to petition a court to seek a release order. The court is then obligated to order release unless the jailer is able to show the court that the incarceration is lawful. This is what makes any prison system operated by our government subject to the rule of law – the jailer has to come into court and explain under what lawful process and charge the prisoner is being held. It distinguishes American prisons from the gulags found in dictatorships around the world. In the England of old, habeas corpus limited even the power of the king to arbitrarily lock up those in royal disfavor.

Well, Congress and the Bush Administration take the position that the right of habeas corpus should not be made available to prisoners at Guantanamo, even those already held without trial as long as six years and still counting, because the military tribunals provided them somehow are an adequate substitute for habeas corpus. What is the legal justification for this argument that kangaroo court military hearings are an adequate replacement for real judicial hearings in a real court? The Supreme Court foolishly ruled in 1977 in Swain v. Pressley that the writ of habeas corpus does not need to be made available to detainees so long as they have an “adequate and effective” substitute allowing them to raise similar claims, even if not wholly within the formal habeas petition structure. So the question is whether the military tribunal system cooked up by the Bush Administration furnishes such a reasonable substitute in the Guantanamo enclave.

In its brief for yesterday’s arguments, the Administration argued that the kangaroo court system provided by the 2005 Detainee Treatment Act is an “adequate and effective” substitute, which it is plainly not. Of course, the government also argues – and Justice Scalia will undoubtedly agree – that habeas does not extend to Guantanamo, even though the court definitively settled that the answer to that question is “yes it does” in 2004’s Rasul v. Bush. These two curious arguments are further explained in this online write-up of the case.

Besides the administration’s bad faith interpretation of the law of habeas, the answer to the central question posed in Boumediene would appear to be quite simple to any citizen with an IQ at least as high as his or her age. But, from all reports, the Supreme Court is close to being divided on this question. For those of us who take seriously the Constitution – and the plain meaning of the words of the English language, in which the Constitution is written – these petty squabbles about what the phrase “shall not be suspended” means are quite remarkable. There may be some vague language in the Constitution, but the habeas corpus clause does not seem to be an example. How can it be, then, that the conservatives on the high court, who normally can be found bleating about liberals’ failure to follow the “strict construction” of the “plain language” or “original intent” of our founding document, are suddenly going out of their way to twist and turn in order to escape the obvious import of the habeas corpus clause? It seems to me, to use a syllogism, that combatant status review tribunals are to habeas corpus, as Hustler Magazine is to real sex – a rather pale imitation.

Stay tuned for whether language, not to mention common sense and the lessons of history, has any real meaning in our age, and whether, to paraphrase the late Lillian Hellman (commenting on the tendency of some leftists during the McCarthy period to denounce friends and associates as Communists), the plain and tested meaning of ancient laws is to be tailored to meet the fashions of the day.

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