SCOTUS Kills Habeas Corpus

SCOTUS has just declined to take all seven of the pending Gitmo habeas corpus petitions, including Latif and Uthman.

This effectively kills habeas corpus.

Consider what SCOTUS just blessed:

  • Holding a person indefinitely for being in the wrong place at the wrong time–including a school, a road, and a guest house–where suspect people are.
  • Holding a person indefinitely based on an admittedly error-ridden report the government wrote up itself.
  • Holding a person indefinitely based on pattern analysis.
  • Completely upending the role of District Court judges in the fact-finding process.

 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

53 replies
  1. MadDog says:

    And SCOTUS effectively blessed the DC Circuit of Appeals as SCOTUS Jr.

    Pay attention other circuits! Whatever the DC Circuit of Appeals says, goes!

  2. MadDog says:

    Edwin Meese is laughing in his grave. Oh wait…he’s not dead yet. Edwin Meese is still laughing in his grave.

  3. Richard S says:

    We’ve all known for years that the Constitution and Bill of Rights are, like the Geneva Conventions, how you say? Quaint vestiges of a bygone era. Oh well…

  4. Bill Michtom says:

    Roberts & his cronies are calling balls & strikes, it’s just that they’re calling balls strikes & vice versa.

  5. emptywheel says:

    @Phil Perspective: Kennedy?

    Um, the court with Stevens and Souter voted to guard Boumediene. The court with Soto and Kagan voted to gut it. That says either they couldn’t get four people to vote to hear the cases, or those four were so sure they couldn’t get a fifth they didn’t take the case.

    I would suggest that Kagan, at least, also supported this decision.

  6. bsbafflesbrains says:

    Scotus, Potus and Congress all tools of the 1%.
    I saw a notice on a longtime small business in my neighborhood that is going out of business that read “Due to recent cutbacks the light at the end of the tunnel has been turned off”

  7. Ptr Htchngs says:

    Habeas Corpus does not apply to prisoners of war who are held as long as the war lasts to prevent them from rejoining the conflict. When Bush used the words “War on Terror” to define what should have been an FBI investigation and then launched two wars he obtained nearly permanent war powers for the Executive Branch the use of Habeas Corpus by anyone deemed a terrorist has been suspended…and yes, your grandmother could be held indefinitely for pissing off that flight attendant by going to the restroom at the wrong time.

  8. ondelette says:

    @Ptr Htchngs:

    The prisoners at Guantánamo are not being held for “duration of conflict”. They are not considered prisoners of war, and only prisoners of war can be held that way.

  9. orionATL says:

    the court moves to isolate itself from any conflict with the executive over national security matters. what was that mumbling about balance of powers?

    harvard law school strikes another blow for an authoritarian american government – and one will come along sooner or later.

  10. lysias says:

    @bsbafflesbrains: The phrases “enemy combatant” and “unlawful combatant” both occur in the extremely unfortunate precedent Ex parte Quirin, 317 U.S. 1 (1942), the German saboteurs case. It is in many ways a very dubious precedent. FDR let the court know that he was going to have the saboteurs executed even if the court decided in their favor. So the court summarily and unanimously — in the middle of their summer vacation — decided to uphold the sentences that the military tribunal had decided on for the saboteurs, which were death sentences for all but two of them. The decision was at that time without opinion. Months later, after the saboteurs had been executed, Chief Justice Stone finally, after much internal struggle, came up with a very dubious opinion which labored to distinguish the case from Ex parte Milligan, and all the justices signed on to the opinion, which was issued per curiam, i.e., not under any justice’s name.

  11. bsbafflesbrains says:

    @lysias: Is Bush’s war on terror the first time the term has been used since Quirin? Is this one of those examples of bad cases make bad law? I know our Founding Fathers put a high value on Habeas Corpus and now it seems the trial will only occur after the hellfire missile has killed it’s “suspected” target. Stone’s opinion will be quoted often by the Government in the future it seems.

  12. joanneleon says:

    Forgive me for not remembering this, but does SCOTUS ever disclose the headcount and vote for each justice when they refuse to hear a case?

    Second, what is the way back from this? Can someone else bring a similar case up through the courts and might a different SCOTUS take it?

  13. liberalrob says:

    @ondelette: Anyway, there is no “war.” Just a series of undeclared, open-ended, and illegal deployments of military force by a nation that has ceased to believe in the rule of law.

  14. Alan8 says:

    I really like ondelette’s statement:

    “Anyway, there is no “war.” Just a series of undeclared, open-ended, and illegal deployments of military force by a nation that has ceased to believe in the rule of law.”

    Sums up the situation in a single sentence.

  15. earlofhuntingdon says:

    @emptywheel: Who says Mr. Obama doesn’t have the Supreme Court Justices he wants. *g*

    I can only imagine that what’s left of the liberal federal bench, or even those unwilling to join the Federalist Society, is hanging on for dear life in hopes that a Democrat, not a Republican in wolf’s clothing, some day sits in the White House with the power to appoint their successors. Mr. Obama sits in the White House and fails to appoint their successors, not out of fear that a Republican-dominated Senate might blackball them, but to avoid revealing what kind of personality he thinks should sit on the federal bench. Perhaps he’ll reveal a bit of what that personality is, should he win a second term.

  16. MadDog says:

    @earlofhuntingdon: I think we already know. Obama wants Supreme Court Justices that fit his own mold; namely folks willing to surrender to the opposition in order to achieve “comity”.

    In Obama’s lexicon, surrender compromise is not a objectionable word. Principles are for chumps.

  17. What Constitution? says:

    @joanneleon: re “what is the way back from this? Can someone else bring a similar case up through the courts and might a different SCOTUS take it?”

    As a strict legal matter, a denial of a writ of certiorari by the Supreme Court has no precedential effect and, thus, does not require the appellate decisions underlying the application to be given binding effect by all lower courts in the land. So, yes, there is the ability to mount challenges still and yes, the Supreme Court at some future time could take such a case, decide these issues and even do so correctly.

    If I read the other comments here correctly, that isn’t seen as being too encouraging. But just as soon as something changes and judges realize they aren’t legally required to shut their eyes in the post 9/11 world, there is in fact room under the “Rule of Law” for today’s actions of this Supreme Court to be set aright. Feel better? I know I do.

  18. Jeff Kaye says:

    @What Constitution?: I suppose what the action today amounts to is a de facto revocation of the Boumediene decision. However, we perhaps can take some very small amount of comfort (very small!) in the fact that the SCOTUS majority did not feel so strong that they could take on the case and overturn Boumediene de jure. As it is, this is a decision for the status quo, and a very bad status quo it is.

    Democratic rights are not overturned overnight, and for that to happen totally would require a fascist regime in this country. We have a very right-wing regime with fascistic tendencies, but we do not yet have the full rule of fascism in this country. I know some on the left may gasp at this, but fascism is historically marked by a full takeover of all civil society — outlawing labor unions, control of the churches, suppression of political parties and other dissident social groups, total censorship, and the complete subordination of the judiciary. And all of this is enforced via the mobilization of extrajudicial forces, such as gangs of thugs, vigilantes (in America, think the KKK, Minutemen, etc., historically).

    That all said, this is an alarm bell rung in the night. And rung loudly! Following the Democratic Party is to follow the tradition of democratic and civil rights into their grave. Those who take solace in things like movement on gay marriage should realize this can and will be taken away overnight, if of when the iron heel comes down.

  19. What Constitution? says:

    @ Jeff Kaye — While I completely agree with your assessment of risks present in an environment in which a sufficient number of Supreme Court justices can’t be mustered to get any of these seven cases accepted for a hearing, I can’t agree that today’s [in]action should be characterized as a “de facto revocation of the Boudemiene decision”. That’s only because to do so would constitute a de facto abandonment of the principle that denial of certiorari most decidedly does NOT have precedential effect — I just don’t want to give up that easily on insisting that Boumediene remains the law of the land and we still have the right to presume that the Constitution applies even in “dangerous times.” I don’t want to give the Supreme Court a pass by acquiescing in a presumption that they just did anything at all to the fundamental principles articulated in Boudemiene. Just don’t want to do that.

    They were wrong, gutless, lazy — you name it — but they didn’t just revoke Boumediene. And if people agree they did, it makes the risk scenarios you viably posit even more inexorable. Maybe, of course.

  20. Jeff Kaye says:

    @What Constitution?: Well, that’s why I said “de facto”. The movement to gut Boumediene began in the DC Circuit, and SCOTUS has crowned it. But you are correct that the principle still stands. A different court could reassert that principle, or possibly, one day the empty shell of a scoured democracy will be dismissed by an azure puff of some stray breeze, and people will say “Did you hear that? I thought I heard something in the wind?” And one will answer, “I heard nothing. There was nothing there.”

  21. Jeff Kaye says:

    @What Constitution?: Well, that’s why I said “de facto”. The movement to gut Boumediene began in the DC Circuit, and SCOTUS has crowned it. But you are correct that the principle still stands. A different court could reassert that principle, or possibly, one day the empty shell of a scoured democracy will be dismissed by an azure puff of some stray breeze, and people will say “Did you hear that? I thought I heard something in the wind?” And one will answer, “I heard nothing. There was nothing there.”

  22. Ronald says:

    @earlofhuntingdon:
    I can only imagine that what’s left of the liberal federal bench, or even those unwilling to join the Federalist Society, is hanging on for dear life in hopes that a Democrat, not a Republican in wolf’s clothing,

    Thanks, Earl. Oliver Stone called O a wolf in sheep’s clothing. See my forthcoming Searching for Obama.
    Ronald

  23. Kevin Schmidt says:

    I sure hope Nancy Pelosi get to head up the House again. She will certainly show the Republicans who is boss when she takes impeachment off the table, again!

    Where is Dennis Kuchinich when you need him? Oh, that’s right. The Fascist Democrats threw him under the bus, again.

  24. harpie says:

    From April 2011:

    Requiem for a Remedy-Sabin Willett
    Link

    […] Three years ago, Boumediene came down like a lion at the end of the term. Great, but short-lived, was the joy in our camp, for the D.C. Circuit soon outflanked its master. It out-hustled the High Court and picked its decision apart, skirmish by skirmish. Some thought the conceit extravagant when our brief called Boumediene a trophy hanging in the library, impressive but lifeless. I wonder, now, if we understated things. […]

    Today, June 12, 2012 is the fourth anniversary of the Boumediene decision.

  25. harpie says:

    Guantanamo Attorney: Landmark Supreme Court Habeas Ruling Now “No More Effective Than a Law Review Article”; Jason Leopold; TruthOut; 4/12/12

    LINK

  26. harpie says:

    Supreme Court Rejects Gitmo Appeals, Spelling Potential End to Prisoners’ Legal Fight for Release; Amy Goodman; Democracy Now!; 4/12/12

    LINK

  27. Jeff Kaye says:

    @harpie: From Jason’s article (I liked the quote):

    In an interview, Mark Denbeaux, the director of the Seton Hall Law Center for Policy and Research who has represented several Guantanamo detainees and is also a member of Zubaydah’s legal team, said the Supreme Court’s landmark decision in Boumediene is now as “legally effective as a law review article.”

  28. hcgorman says:

    I just saw that the judge in my Gitmo client’s case finally decided to rule on the remaining post habeas motion that I filed- denying it of course- only took him 14 months.
    I guess this was his way of saying happy Birthday to Boumediene.

  29. Bill Michtom says:

    “Oliver Stone called O a wolf in sheep’s clothing.”

    I haven’t noticed any wool, just fur and a full-throated howl.

  30. Rodger Lodger says:

    Cert (review) is granted if four justices vote for it. Normally the vote is not revealed. Once in a while a justice notes his dissent from denial, but that is not usual. Therefore: only in the following rare case do you know the vote: when three justices note their dissent from denial. (work it out –it’s fun!)

  31. Rodger Lodger says:

    You’re speaking on a theoretical, not practical plane. If the Court does not review extremely important cases in this area at all, they have abandoned the premise. Note that all the petitions are brought in D.C.,so the D.C. Circuit is the only court that counts here.

  32. Rodger Lodger says:

    Your question is a good one. “Enemy combatant” has been used by courts before gitmo, but it is no a legal term in the sense that it has a precise definition, nor does it appear in the Constitution or federal statute. Even more confusing was the post-9/11 coinage “illegal enemy combatant”.

  33. Rodger Lodger says:

    the Supreme Court could at any time grant cert. in a case raising the same issue it declined to review this week. Cert. denieds do not set precedents for the Supreme or lower courts.

  34. OH says:

    Refusing to hear the case means there were less than 4 Supreme Court judges who were willing to hear it.

  35. OH says:

    Actually as RL pointed out, the fact that we dont have names of dissenters proves there were less than 3 Supreme Court “justices” who were willing to hear the case

  36. earlofhuntingdon says:

    @Rodger Lodger: Ordinarily, that requires a change in the issues or their prominence presented by a case; new, significant disagreements among federal circuit courts deciding similar cases; a change in the make-up of the court or a sea-change causing the court to reconsider its prior, collective decision not to grant cert. None seem likely to present themselves.

    It is a truism that denial of cert. does not set precedent, as it is that denial of cert., in effect and at least temporarily (and often for long periods), leaves undisturbed the circuit court’s ruling and reasoning, which directly affects the parties and actual or potential parties in the same circuit, and, indirectly affects those in other circuits.

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