“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Kennedy wrote in Boumediene v. Bush, and “the framers decided that habeas corpus, a right of first importance,” must be part of the American legal framework.
But this week the court rejected appeals in seven habeas cases involving detainees challenging the legality of their imprisonment. (The justices also rejected an appeal in a separate civil suit brought by Jose Padilla, an American citizen, against former Defense Secretary Donald Rumsfeld and other officials for abuse and torture during his detention.) With no dissents in the denials, it is devastatingly clear that the Roberts court has no interest in ensuring meaningful habeas review for foreign prisoners.
For four years, the justices have left it to the Court of Appeals for the District of Columbia Circuit to devise rules for the Guantánamo habeas cases. That court has developed substantive, procedural and evidentiary rules that are unjustly one-sided in favor of the government. In Latif v. Obama, for instance, decided last October, the majority of a three-judge panel required trial courts to presume the accuracy of questionable evidence.
Judge David Tatel, dissenting in the case, argued that “it is hard to see what is left of the Supreme Court’s command” if the appeals court is allowed to repudiate Boumediene and “calls the game in the government’s favor.” The same can be said about that court’s handling of almost all other Guantánamo cases. In the 19 appeals it has decided, the court has never allowed a prisoner to prevail.
In Boumediene, Justice Kennedy noted that habeas review is less about prisoners’ rights than the judicial power to check undue use of executive power. In refusing to correct the appeals court’s misguided rulings, the justices fail to support important principles proclaimed in Boumediene and diminish their own authority.