Debate continues over history of habeas
on Dec 21, 2007 at 4:01 pm
The Justice Department, continuing the post-argument dispute over the history of habeas corpus as it may affect the Court’s coming decision on detainees legal rights, told the Justices on Thursday that the detainees — if their cases were controlled by the circumstances in 1789 — would not have any chance to challenge the government’s reasons for keeping them imprisoned. In a supplement brief the government asked permission to file, U.S. Solicitor General countered a similar brief that detainees’ lawyers had filed on Dec. 10. The Court held a hearing Dec. 5 on the detainees’ cases (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196), and is now deliberating over its decision.
The new government brief can be downloaded here. The Court has said that the scope of habeas rights at the current time depends in part upon their meaning in past history, especially in 1789. At that time, Clement argued in the new brief, there was a common-law rule that a confined individual seeking release “was not permitted to controvert the facts” the government had cited for the confinement. That rule, along with geographic limits that the government argues restrict habeas rights, would have kept today’s detainees from “obtaining anything like the review” they will receive if they challenge their detention in the D.C. Circuit Court under the Detainee Treatment Act.
Clement also used the supplemental U.S. brief to respond briefly to points that detainees’ counsel had made during oral argument.
