Wednesday, October 21, 2009

Be Careful What You Ask For

Frankly, I was a bit surprised that the Supreme Court decided to hear the case involving the release of the Chinese Muslim Uighurs being held at Guantanamo Bay.

Here's the background to the case. At the trial level, the federal judge who held the habeas corpus hearing ordered the Uighurs released to the US where a number of resident Uighurs had expressed willingness to take in these mistakenly held men, find them suitable jobs, and help them adjust to freedom. The government appealed and won. That decision held the judge did not have the jurisdiction to order the release to the US. The Uighurs' lawyers appealed that decision, arguing that habeas corpus would become an empty concept if judges could not order the release of prisoners with nowhere to go.

Adam Liptak of the NY Times set forth the competing issues nicely this morning.

The case presents the next logical legal question in the series of detainee cases that have reached the Supreme Court. Last year, in Boumediene v. Bush, the court ruled that federal judges have jurisdiction to hear habeas corpus claims from prisoners held at Guantánamo.

Lawyers for the Uighur prisoners say the Boumediene ruling would be an empty one if it did not imply giving judges the power to order prisoners to be released into the United States if they cannot be returned to their home countries or settled elsewhere. ...

The new case pits a fundamental judicial function, that of policing unlawful imprisonment through writs of habeas corpus, against one entrusted to the political branches, that of enacting and enforcing immigration laws.

This case, and others in the chain of decisions after Boumediene, provides a classic constitutional issue with respect to the separation of powers, and that this court decided to take the case on is both surprising and a little frightening. If the court rules that the trial judge over-stepped his power by ordering the release of the unlawfully detained Uighurs into the US, then it effectively diminishes the power of the judiciary with respect to habeas corpus. If, on the other hand, the court rules that the very nature of habeas corpus requires the unlawfully detained to be released somewhere, and if the only somewhere is the US, so be it, then the Court effectively holds that habeas corpus trumps the powers granted to the legislative and executive branches.

Neither outcome is particularly attractive.

All of this, of course, might have been avoided if Congress hadn't gone all cowardly, insisting that no Gitmo prisoners can be released into the US. But it did, and unless it reverses itself and passes legislation allowing for such release when it comes to the non-dangerous detainees, we will be faced with a rather sizable constitutional crisis.

Mr. Liptak suggests that the case will be heard in February. The other two branches of government don't have much time to find a way to avoid this clash, and I don't think either branch has the spine or the wisdom to do so. The most we can hope for from this Supreme Court is that the ruling is unequivocally limited to the case and facts before it. I'm even less optimistic about that.

Heckuva job, George.

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