The Great Writ At Guantanamo

Yesterday the Supreme Court heard a case tailor-made for a Con Law class. It is just bursting at the seams with all sorts of constitutional questions, ranging from what level of deference should be shown to the President (Is he acting with Congressional authority? Do we have Youngstown here? But what if Congress's authorization is, itself, unconstitutional? Ah, so puzzling!) to the grand-daddy question of them all: can anyone issue a writ of habeas corpus for the prisoners in Guantanamo?*

In other words: can the government throw you in a cell, not tell you why, and never give you a chance to say that you're the wrong person?

In Con Law speak: can the President and Congress between them strip the Supreme Court of its authority to hear common law habeas claims?

Because, you see, the habeas petition--the plea to a judge that you're the wrong person or innocent or whatever--is not just another legal phrase. It is The Central Element of our judicial system.  It is what keeps the government from throwing people (well, citizens anyway--according to Hamdi) into cells and leaving them there until they rot, without having to go through that tiring rigamarole of rounding up evidence, and letting people speak in their own defense, and so on.

So, will the Supreme Court give that up? It remains to be seen. Slate has an appropriately snarky essay on yesterday's arguments.

*Because Cuba not only won't, it can't. Cuba has no jurisdiction over Guantanamo, its courts cannot do a darn thing with any prisoner petitions. The only courts with jurisdiction are US courts. What I find particularly funny about the whole situation, because I have a sick sense of humor, is that the whole gimmick of trying to keep prisoners where the courts can't get at them has been tried before. Lord Clarendon tried it during the reign of Charles II. The English were not amused.

Comments

[Jill]

I wish I had faith that the current court felt as strongly about habeas corpus claims as I do.

But then, it's a glass-half-empty kind of day today. For me, anyway.