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Habeas Works

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Two years ago, the U. S. Supreme Court handed down its decision in the landmark case Boumediene v. Bush. The Court ruled that the constitutionally guaranteed right of habeas corpus review applies to the Guantánamo detainees, enabling them to challenge their detention in federal court. Through the ruling, the Court charged federal district courts with developing the framework for reviewing Guantánamo detainees' habeas cases.

Yesterday, the Constitution Project and Human Rights First released a report from 16 former federal judges, with a combined experience of 248 years on the federal bench, entitled Habeas Works: Federal Courts' Proven Capacity to Handle Guantánamo Cases. In this report, the judges show that the habeas process is working and that the federal courts have developed consistent jurisprudence on standards to be applied and the procedural and evidentiary rules governing Guantánamo habeas cases.

As they have done for centuries, judges are reviewing these habeas petitions to assess whether each detainee is properly being held. Contrary to the criticism leveled by some that the District Court judges are usurping the role of legislators, the report demonstrates that judges are playing an appropriate constitutional role and are fulfilling the duty they've been charged with: applying the law to the facts in these cases.

The Guantánamo litigation has tested the judiciary as it has tested the nation. But the judiciary, like the country and the Constitution it serves, has risen to the challenge. In the report, the retired judges recognize that Congress has the constitutional authority to enact further legislation that would govern these cases. But they caution that such a course is at once unwise and unnecessary: unwise because it would bring us back to square one just when the courts are finally beginning to resolve these cases; and unnecessary because the federal bench, as it has done for centuries, is steadily developing a coherent and rational jurisprudence.

For the release of the report, Judge William S. Sessions, former judge for the U.S. District Court, Western Division of Texas and later Director of the FBI, and Doug Spaulding, a law firm lawyer with extensive experience representing Guantanamo detainees on a pro bono basis, joined us for a panel discussion at a National Press Club Newsmakers event Thursday afternoon.

Judge Sessions, a signatory of the report, shared his opinion that the courts have been successful in developing a consistent jurisprudence. "The courts have been struggling with it and been making very good and sound headway trying to determine how to deal those people who have been placed in Guantanamo and whether and how they are entitled to be released," Judge Sessions said.

Judge Sessions explained that the road ahead for the future of habeas litigation would not necessarily be clear cut, but that placing the responsibility in the hands of the courts was the best solution. "We are going to continue to deal with problems and procedures, but the courts are equipped to deal with this issue and are the right people to handle this," he said.

Spaulding, a partner at Reed Smith LLP in Washington D.C. who has served as habeas counsel for several Guantanamo detainees, echoed Judge Sessions' statement, saying he believed that the courts are, in actuality, doing their job the way they ought to be doing it. "It appears to me that district courts are sifting evidence, ascertaining facts and applying the law and making decisions in individual cases," he said.

Spaulding also highlighted the pressing nature of the issue. "This is not merely an academic exercise," he stated. He reminded the audience that additional Congressional legislation would only set back the progress the nation has made in the past two years since the Boumediene decision. "There are flesh and blood human beings who have been locked up in Guantanamo for years," he said. "How much longer should we ask them to wait while Congress, perhaps, and the Courts go through another round of 'corrective' judicial legislation?"

Spaulding concluded the event by emphasizing that the strength of the United States is drawn from its separation of powers. "Congress has done its legislative job, it adopted the Authorization for the Use of Military Forces, now the courts should be allowed to do their job, of finding the facts and applying the law to those facts," he said.

From here, the Constitution Project and Human Rights First plan to distribute the report widely to members of Congress and executive branch officials.

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