Habeas Corpus

Supreme Court Agrees to Hear Uighur Detainees' case

Yesterday, the Supreme Court decided to hear the case of 13 Uighur detainees held at Guantanamo Bay who are no longer classified as enemy combatants and have been determined to be no threat to the national security of the United States. These detainees - who were captured in Afghanistan and Pakistan and have been held by the U.S. since 2001 - were cleared for release by the Pentagon in 2003, but six years later, they have yet to be set free.

After the Supreme Court ruled in Boumediene last year that Guantanamo detainees have the right to bring habeas corpus claims in federal court to challenge the legality of their detentions, a federal judge in DC ordered that the Uighur detainees be immediately released into the United States since they cannot return to their own country. As members of a Turkic Muslim minority from the Xinjiang Autonomous Region of China, their release back into their own country would likely result in torture and execution.

In February 2009, a 3-judge panel of the DC Circuit Court of Appeals overturned that order, finding that the federal courts lack the authority to order their release into the U.S. Describing it as an immigration decision, the panel concluded that only the executive branch has such authority and even suggested that the detainees apply for entry into the United States through the Department of Homeland Security pursuant to our immigration laws. In petitioning the Supreme Court for certiorari review, the Uighur detainees argued that stripping the power from the federal courts to order their release into the United States rendered the habeas right recognized by Boumediene meaningless. And indeed, they continue to be held behind chained fences guarded by military men.

Disappointingly, Obama's Solicitor General Elena Kagan urged the Supreme Court not to hear the case, arguing that they have no right to enter the United States. Kagan wrote that "they are free to leave Guantanamo Bay to go to any country that is willing to accept them," but acknowledged that the detainees "understandably do not wish to [return to their home country]." Kagan's brief even attempted to portray the conditions of the Uighurs' imprisonment as not so bad.

In contrast to individuals currently detained as enemies under the laws of war, petitioners are being housed under relatively unrestrictive conditions, given the status of Guantanamo Bay as a United States military base…[They are] in special communal housing with access to all areas of their camp, including an outdoor recreation space and picnic area. . . [They] sleep in an air-conditioned bunk house and have the use of an activity room equipped with various recreational items, including a television with VCR and DVD players, a stereo system, and sports equipment.

Sounds just as good as freedom, doesn't it?

But what if there is no country willing to accept them? That is the case for at least one of the Uighur detainees who has serious mental treatment needs. In that scenario and under these set of circumstances - where they have been found to be no threat to the United States - shouldn't the U.S. take it as a moral imperative to immediately release these people even if they must be released into our borders? Particularly since the media coverage of their wrongful detentions at Guantanamo Bay by the United States is what highlighted the bull's eyes on their backs for the Chinese executioners in the first place?

Let's not be distracted by side arguments by the DC Circuit or our new SG. First, this is not an immigration matter subject to the jurisdiction of the Department of Homeland Security or Congress. These people had no intention or desire to migrate to the United States. They were involuntarily and wrongfully imprisoned by the United States for over eight years. Second, they are not free in any way and are in every sense of the word imprisoned. If relocation to another country is not available, the United States has a moral duty to immediately release these people into the U.S. subject to any parole conditions that may be appropriate. And if the judiciary is the only branch of our government that has the moral compass to do what is right, they should be vested with the power to do so. That is the root of habeas corpus relief which was designed to remedy unlawful government detention. That is why we have our constitutional system of checks and balances.

PFAW

Bagram Detainees Obtain Right to Challenge Detention

The Washington Post reported on Sunday, that the Obama administration this week will put in place a new review system to allow detainees held by the U.S. at a military base in Bagram, Afghanistan the ability to challenge their detentions.  While this is a small step in the right direction, the bigger issue is the administration’s decision to continue arguing against habeas corpus rights in the federal case brought by some of those same Bagram detainees now pending before the DC Court of Appeals. 

After the Supreme Court ruled in 2008 recognizing by a vote of 5-4 the habeas rights of detainees held by the U.S. at the military base in Guantanmo Bay, Cuba, and since Obama has declared that the Guantanamo detention center will be closed by the end of the year, all eyes have turned toward Bagram where hundreds of detainees are being held there without review. While both sides continue to argue the merits of whether the constitutional right of habeas corpus should apply to detainees held overseas by the U.S. in a zone of conflict, at least the administration now concedes what many of us have been arguing for years:  it is a basic human right that an individual cannot be deprived of their liberty without due process.  

Let’s hope that the new process afforded to Bagram detainees in the end will be a meaningful one. 

PFAW

Don’t Believe the Right’s Propaganda on the Supreme Court

With everyone talking about the retirement of Justice David Souter, the Radical Right’s propaganda machine is set to max.

Right Wing Watch is reporting on the Right’s reaction.  One of the more laughable claims comes from Wendy Long of the Judicial Confirmation Network:

The current Supreme Court is a liberal, judicial activist court.  Obama could make it even more of a far-left judicial activist court, for a long time to come …

Calling the current Court liberal is like calling Mitt Romney consistent – you can’t say it with a straight face.  In fact, no less an authority than Justice John Paul Stevens has pointed out that “every judge who’s been appointed to the court since Lewis Powell has been more conservative than his or her predecessor,” with the possible exception of Justice Ginsburg.

But, for the sake of argument, let’s review some of the highlights of the current “liberal” Supreme Court.

In order to achieve their desired ideological results, the Far Right justices have recklessly toppled precedents, or even ignored them while pretending not to, with alarming frequency.  For example, the restrictive federal abortion ban upheld by the Roberts Court was essentially identical to one the Court had struck down before Roberts and Alito joined the bench.  Unfortunately, extreme Right Wing ideology trumped the rule of law.

Voting rights have also come under attack.  The Roberts Court upheld the constitutionality of the most restrictive voter ID law in the country, an Indiana law requiring people to present a currently valid, government-issued photo ID in order to vote.  This imposes a substantial burden on the elderly who don’t drive, college students, and the poor who don’t own cars.  Indiana was unable to identify a single case of in-person voter fraud occurring in its history.  That didn’t stop the Roberts Court from upholding a restriction that kept many Americans from being able to go to the polls on Election Day and cast a vote.

Even our very access to the courts has come under attack from the “liberal” Supreme Court.

Lilly Ledbetter was a victim of sex discrimination effectively barred from the courthouse.  Late in her career, she learned that she had, over the years, been subjected to salary discrimination on the basis of her sex, and she sued.  A jury found that she had been illegally discriminated against.  Yet a 5-4 Right Wing majority held that she should have sued within 180 days of the initial discriminatory conduct—even though she didn’t learn that she was being discriminated against for more than a decade.

The Court also closed the courthouse door in Riegel v. Medtronic, holding that patients injured by a defective medical device cannot sue for damages for violations of state common law if it was approved for marketing by the Food and Drug Administration and made to the agency’s specifications.  To reach this result, the Court had to interpret a federal law in a manner directly contrary to how its Senate sponsor said it was intended.

Keith Bowles was yet another victim denied his day in court.  After Bowles was denied relief in federal district court, the judge informed him that he had 17 days to file an appeal.  Unbeknownst to him, the rules really gave him only 14 days.  So when Bowles, relying on the federal judge, filed on day 16, a narrow 5-4 Supreme Court majority said that he had filed too late.  In so doing, the Court majority overruled clear and principled precedent that protected people in his situation.  In dissent, Justice Souter correctly wrote that “it is intolerable for the judicial system to treat people this way, and there is not even a technical justification for this bait and switch.”

The danger from right-wing justices was clear in Boumediene v. Bush, a case related to the then-President’s claim of virtually unlimited executive powers to conduct the war on terror.  The case involved the constitutionality of the Military Commissions Act of 2006, which eliminated federal court jurisdiction over habeas corpus claims by certain foreign detainees.  The Court rebuked President Bush’s vision of the presidency as an office of limitless power and declared that the president of a free nation cannot simply lock people up and throw away the key like some third-world dictator.  Chillingly, with Chief Justice Roberts and Justices Alito, Scalia, and Thomas dissenting, the case was decided by a single vote, 5-4.  One more hard-right justice on the Court, and the decision would likely have gone the other way.

That’s why it’s crucial to have justices who are committed to our core constitutional values of justice and equality under the law.

It is of the utmost importance that Justice Souter be replaced by a powerful advocate for our Constitution—a justice in the mold of great jurists like Thurgood Marshall and William Brennan.  Our nation cannot afford anything less.

PFAW

Restoring Justice, Step by Step

On Monday, Eric Holder was confirmed as Attorney General. Big news ... and good news for Americans who depend on the Justice Department to defend their rights. A bit more under the radar, Monday also saw another important piece of news at the DOJ. Leslie Hagen, a Justice Department attorney who was fired by Monica Goodling because of rumors that she was a lesbian, was rehired to her previous job at the Department.

This is just one step in cleaning up the appalling mess at the DOJ left by egregious politicization during the Bush administration. Monica Goodling, senior counsel to Attorney General Alberto Gonzales, was by all objective standards unqualified for such a high post. Her only "qualifications" -- the only ones that mattered in the Gonzales DOJ -- were that she was a partisan ideologue who graduated from Pat Robertson's Regent University Law School and was committed to reshaping the Justice Department to operate on a right-wing agenda.

Even though the politicization of the DOJ under President Bush was shameful (and possibly criminal), some senators apparently think it should continue and are taking their marching orders from the Radical Right. The next targets of their witch hunt? Three more of the president's eminently qualified DOJ nominees: David Ogden, Thomas Perrelli and Dawn Johnsen.

Dawn Johnson, for example, has been tapped to head the Office of Legal Counsel (OLC) -- the office that, under the Bush administration, produced the memos that served as its guidelines for detainee treatment and executive overreaching. Johnsen has been a harsh critic of the Bush administration's legal justifications for its policies. And, in her extremely impressive legal career, she spent several years at NARAL Pro-Choice America. Already some senators like Jeff Sessions of Alabama -- who earlier this week assailed the Johnsen nomination on the Senate floor -- are suggesting that, in their view, pro-choice bona fides should be an instant disqualifier.

Quickly confirming the rest of President Obama's Justice Department team will be one more important step, but there's still much more to be done to repair what was so damaged during the Bush years.

Let's look back at just a few of the disasters born out of DOJ's right-wing politicization:

  • political firings of U.S. attorneys;
  • political firings of staff attorneys, especially in the Civil Rights Division;
  • refusal to properly enforce civil rights laws, particularly those protecting voting rights;
  • Department approval and justification of unconstitutional policies from warrantless domestic spying to the denial of habeas corpus and torture.

People For the American Way will be pushing for investigations into these wrongdoings. I know how important this issue is to our activists -- you've pitched in time and again over the last eight years as we've pushed for accountability and the rule of law at the DOJ, and hundreds of you wrote me impassioned emails last week about just how critical it is to keep pushing.

Karl Rove and others who are subpoenaed to testify or provide documents must comply and cooperate not just with Justice Department probes into these matters, but also with any and all congressional investigations. Congressional action is what's needed to get to the bottom of what happened, hold those responsible accountable and prevent similar abuses of power from happening in the future.

Making sure investigations happen and proceed effectively and making sure President Obama's other Justice Department nominees are confirmed smoothly are just two things we'll be working hard for in the coming weeks, and there will be much more.

I'd also like to take a moment to ackowledge Supreme Court Justice Ruth Bader Ginsburg who is in the hospital recovering from surgery. She's a true defender of our constitutional values and I know you'll join me and the rest of the staff of People For in wishing her a speedy recovery.

PFAW

Supreme Court Hears Detainee Case

The Supreme Court today heard oral argument in Boumediene v. Bush, an important separation of powers case in which detainees at Guantanamo are challenging the constitutionality of the Military Commissions Act, which prohibits them from challenging the legality of their detention through habeas corpus review in federal courts. The detainees contend that the preclusion of habeas review violates the Suspension Clause of the Constitution, which prohibits the suspension of the writ of habeas corpus except in cases of "rebellion or invasion." PFAWF has filed an amicus curiae brief in the case in support of the detainees' constitutional claims.

PFAW