Habaeus corpus: a hopeful development

From today’s New York Times:

“Finally, after nearly six years, the Supreme Court is going to rule on the ultimate question: does the Constitution protect the people detained at Guantánamo Bay?” said Neal K. Katyal, a Georgetown University law professor. …

The new case sets up a test of one of the central principles of the administration’s detention policies: that it can hold “enemy combatants” without allowing them habeas corpus proceedings, which have been used in English and American law for centuries to challenge the legality of detentions.

The Justice Department declined to comment in any detail on yesterday’s order, which it had strenuously opposed. “We are disappointed with the decision, but are confident in our legal arguments and look forward to presenting them before the court,” said Erik Ablin, a department spokesman.

The administration has argued that permitting habeas corpus suits by foreigners who are held as enemy combatants outside the United States would paralyze the military during wartime by giving courts the power to review commanders’ decisions. In response, Congress passed a law last year stripping the federal courts of the power to hear such habeas corpus cases filed by Guantánamo detainees. …

Lawyers for detainees had filed some 300 habeas cases, which were working their way through the courts when Congress passed the law last year. Democrats in Congress have been pressing to explicitly grant the detainees habeas rights. Some supporters said yesterday’s decision would increase political pressure for such a measure, although administration officials have said the president would probably veto it.

Even so, the court’s decision yesterday could increase momentum within the administration to find a way to close the Guantánamo detention center. …

Lawyers on both sides of the issue also said the Supreme Court’s review was likely to focus on the fairness of the military hearings that the administration has established to determine whether detainees are enemy combatants and should be detained. In the closed hearings, conducted by what are known as combatant status review tribunals, detainees are not permitted lawyers and cannot see much of the evidence against them.

What is this “new case” that has created such a stir? Actually, it’s an old case. The Court has taken the extraordinary step of reversing an earlier decision, taken in April, not to review a federal appeals court decision on the issue described above:

The court rarely grants such motions for reconsideration. Some experts on Supreme Court procedure said they knew of no similar reversal by the court in decades.

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