Delaying Habeas Hopes

Last Friday's New York Times editorial page criticized the Supreme Court’s decision not to hear a habeas corpus appeal by Guantanamo detainees (in legal lingo, the Court denied them a writ of certiorari, or "cert" ). The detainees had asked the Supreme Court to review a decision by the D.C. Circuit upholding a law that stripped the courts of jurisdiction to hear habeas petitions from noncitizen detainees. Denial of cert does not necessarily say anything about the justices' views on the merits of a case. But given the importance of the issues underlying this one, Justices Stevens and Kennedy saw fit to make it painfully clear that their votes to deny cert had nothing to do with the merits here. Rather, Justices Stevens and Kennedy simply noted that detainees ought to wait until they've had hearings before the Court will determine whether habeas was properly denied:

Despite the obvious importance of the issues raised in these cases, we are persuaded that traditional rules governing our decision of constitutional questions, and our practice of requiring the exhaustion of available remedies…make it appropriate to deny these petitions at this time.

The two justices warned that if the executive branch “unreasonably delay[s]” the procedures to review the propriety of the detainees' captivity, or if those procedures prove not to be an adequate substitute for habeas, the Court may agree to hear the case at a later date.

Concerned about the excessive length of time it will likely take for the detainees to exhaust their (in all likelihood, completely inadequate) remedies and re-petition for habeas relief to the high court, the editorial urges congressional action, saying “[i]t is past time for Congress to undo the grievous damage done” by the habeas-stripping legislation. Congressional action is needed to restore habeas because “[h]olding people without evidence or charges or trial is barbaric, as is denying them the right to challenge their detention in a real court.” After all, the courts are not the only branch of government with a duty to uphold the Constitution, and we whole-heartedly agree that “Mr. Reid and Ms. Pelosi have a moral obligation to lead the way to righting these wrongs.”