Courting Contradictions

Nearly six years ago, the Bosnian Supreme Court released Lakmar Boumediene following a three-month investigation that revealed no evidence to support a U.S. claim that he was involved in a terrorist plot to attack U.S. and British Embassies. As he was leaving the courthouse to return to his wife and two children, Boumediene was handed over to American officials, who flew him to the U.S. naval base at Guantanamo Bay, Cuba. Today, he remains at this detention facility despite the fact that he has never been charged with any crime. Each day he endures indefinite detention in the facility's sparse living conditions and interrogations by U.S. officials. Each day he awaits a fair hearing by an impartial judge - a right that the administration has continued to block. On Dec. 5, the U.S. Supreme Court will hear Boumediene's case and, in the months to come, will issue a ruling that could provide him and other Guantanamo detainees with access to their basic legal rights.

Boumediene v. Bush marks another waystation on the legal journey that began in 2004, when the court considered a similar issue in Hamdi v. Rumsfeld. In that case, the Justices reversed the dismissal of a habeas corpus petition filed on behalf of another man being detained as an "illegal enemy combatant." Though the Court recognized the government's power to detain these citizens, it ruled that they must have the ability to challenge their detention in the courts. In that opinion, Justice Sandra Day O'Connor confidently proclaimed, "[T]he Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions." It was a victory for those of us who believe that indefinite detention without judicial review contradicts American values, and it gave hope to the hundreds of people the Bush administration was holding captive without a fair hearing by an impartial judge -- people like Lakmar Boumediene.

A lot has changed since the Court's Hamdi ruling, but for detainees awaiting habeas hearings, more has stayed the same. Two Supreme Court decisions, two new Justices, two Congressional enactments, and two Attorneys General later, the Great Writ remains elusive for those held in Guantanamo and elsewhere. By now, the storyline is all too familiar: the Bush administration is attempting to exercise unlimited executive power and escape oversight by the other branches of government. But the tactics employed by the White House and the Department of Justice in this executive power-grab are particularly infuriating--including making simultaneous contradictory arguments in different federal courts in order to evade meaningful judicial review.

This week when the Supreme Court hears the Boumediene case, it will consider the constitutionality of the Military Commissions Act's (MCA) habeas-stripping provision. In its briefs to the Supreme Court, the Justice Department argues that the Combatant Status Review Tribunal (CSRT) appeals process prescribed by the MCA is an adequate substitute for a habeas hearing, describing the process as robust and effective judicial review of the evidence against a detainee. However, in a case pending before the D.C. Circuit, the Justice Department has argued that the CSRT appeals process is so narrow that the detainee doesn't need full access to his lawyer, saying, "[T]he review here is administrative in nature and is on the record of the CSRT. Accordingly, factual development at Guantanamo will not be necessary..."

Why would the Justice Department simultaneously argue that a CSRT appeal is very broad and essentially equivalent to habeas, and also that the appeal is so narrow it might not even require conversations between the detainee and his lawyer? The answer lies in the real goal of these conflicting arguments: to preserve and expand unreviewable presidential power, no matter what the cost to our basic rights. Like so many other actions of the Bush Justice Department, the positions taken by the DOJ in these cases has been motivated by the desires of a President rather than the commands of the Constitution.

Even with its recent personnel changes, we hope that the Supreme Court will once again stand up to the Bush administration's assertion of unbridled executive power and rule that no president has the power to detain people indefinitely without a fair hearing before a federal judge. We hope the justices will give Boumediene and all of those who have been indefinitely detained their fair day in court.

To learn more about politicization of the Justice Department and the campaign to restore habeas corpus, visit