IN UPHOLDING A LAW that denies detainees at Guantanamo Bay Naval Base the ancient right of prisoners to challenge their confinement in court, a federal appeals court has presented the Democratic-controlled 110th Congress with a challenge. Does it have the fortitude to undo an injustice perpetrated by the Republican-controlled 109th?
The injustice came in the 2006 Military Commissions Act, which barred detainees at Guantanamo -- now numbering 395 -- from contesting their imprisonment by seeking writs of habeas corpus. This exclusion, like Guantanamo itself, has been an embarrassment to the United States.
In 2004, the Supreme Court ruled 6 to 3 that detainees at the facility (which the U.S. leases from Cuba) could seek relief under a federal habeas corpus statute because Congress had previously placed the area under the "complete jurisdiction and control" of the U.S. But on Tuesday, a 2-1 majority of the U.S. Circuit Court of Appeals for the District of Columbia ruled that the Military Commissions Act essentially overruled the Supreme Court and should apply to all detainee cases, even those filed before the law was passed.
The high court could still correct the situation by ruling that the detainees have a constitutional right to bring habeas actions. In the 2004 case, Justice John Paul Stevens noted that habeas corpus is a "writ antecedent to statute ... throwing its root deep into the genius of our common law." But in his opinion for the appeals court, Judge A. Raymond Randolph preempted that argument by claiming that, under English and early American law, habeas was not available to "an alien outside the territory of the sovereign." Congress, he suggested, has now placed Guantanamo in that "outside" category.