Months After Boumediene, Justice Delayed Is Justice Denied

By Aziz Huq, The Nation. Posted October 7, 2008.

In June of this year, the Supreme Court issued what Ronald Dworkin hailed as "one of the most important Supreme Court decisions in recent years" when it held that the detainees at the Guantanamo Bay Naval Base are entitled to make "habeas corpus" challenges against the government's purported bases for detaining them.

Indisputably, the 5-4 judgment in Boumediene v. Bush was a major civil liberties victory. It should indeed have major repercussions beyond Guantanamo because it makes clear that at a minimum, constitutional rules ensuring fair process limit governmental actors in all the territorial United States.

This might sound like old news, but in fact it should precipitate the end of some troubling practices at the borders. When a noncitizen now arrives in the United States, immigration officials can place that person in "expedited removal," which means they can be shipped back to a place where they may fear torture without any judicial review. Since 9/11, the Department of Homeland Security has expanded the use of "expedited removal" in ways that can be squarely challenged now.

Equally, Justice Anthony Kennedy's ruling should put an end to the government's bizarre legal theory that it can allow a person into the country without legally "admitting" them, so that they have no legal or constitutional rights. Most recently, the government relied on this peculiar legal limbo to resist the legal suit brought by Canadian citizen Maher Arar, who was seized at JFK International Airport and sent for torture to Syria. Confined in the government's care, Arar should benefit no less from the shield of due process than anyone else.

But at Guantanamo itself, the good news of the Boumediene decision has yet to translate into concrete results. Paradoxically, the most successful of the detainees' suits has not been in a habeas case but in another suit called Parhat v. Gates.

One of a clutch of Uighur Muslim detainees at the Cuban base, Hozaifa Parhat invoked the more limited judicial remedy that Congress fashioned in 2005 when it tried to snuff out habeas (under the Detainee Treatment Act). Even using this tightly constricted channel of review, Parhat was able to convince a panel of the conservative-tilted D.C. Circuit Court of Appeals that his detention was unlawful because the government simply had no evidence of a link to al Qaida or any other group fighting the United States.

Parhat has a case that is much more straightforward than many of the other detainees because the evidence against him is numbingly weak. Faced with the prospect of unwillingly having to release someone the administration has labeled the "worst of the worst," the government has managed to stymie progress with the startling new, and potentially devastating, argument that it is now proffering: The courts may have power to take evidence, hear cases and issue decisions ordering release, but only the government has "wind up" authority -- i.e., power to decide how and when an illegal detention ends.

See more stories tagged with: habeas corpus, supreme court, boumediene v. bush, guantanámo, ronald dworkin, dc district court

Aziz Huq is co-writing a book on national security and the separation of powers titled Unchecked and Unbalanced, to be published by the New Press.

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