December 2005 marked the 1st time that Congress joined with the Executive to kick out of court terrorist suspects who've been denied the protections either of the American criminal justice system or the system of justice established by the 1949 Geneva Conventions on the laws of armed conflict. (As explained here, that double denial makes these cases different than others in years past.) Congress' action upset the Supreme Court's 2004 holding in Rasul v. Bush that persons held at Guantánamo were entitled to challenge the lawfulness of their detention in federal court. "Habeas corpus," the Court had stressed, “'throw[s] its root deep into the genius of our common law'" and serves an "'historic purpose ... to relieve detention by executive authorities without judicial trial.'" The Court held firm to this position in Hamdan v. Rumsfeld, reserving Constitution-based decision in that 2006 case as it ruled that the 2005 statute had not clearly abrogated detainees' habeas rights.
Within months Congress responded: included in the Military Commissions Act was a clearer cutoff of habeas rights. Appellate judges have upheld this cutoff, and will hear argument next week on the administration's consequent bid to limit habeas attorneys' activities.
The newly elected Democratic Congress could change all this, as activists have been urging (see icon above, part of the American Civil Liberties Union's "Find Habeas" campaign). Proposed restoration legislation is already in the hopper. Leaders have labeled the matter a priority. But so far Congress' only play has been a balk.
Yesterday committee chairs in Congress refused to include habeas restoration in the defense authorization bill (necessitated by President George W. Bush's veto of a predecessor bill that would have set timetables for U.S. withdrawal from Iraq). Elisa Massimino, Washington director of Human Rights First, told The Hill: “If you do not swing at the first pitch, it does not bode well.” Not well for detainees, and not well for U.S., either.