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The Constitution Argument December 6, 2007

habeas corpus is dead

Who doesn’t love law makers that work for the people. The following argument was made by Justice Stephen Breyer against the illegal inability of people to challenge their imprisonment in Guantanamo:

JUSTICE STEPHEN BREYER: Suppose that you are from Bosnia, and you are held for six years in Guantanamo, and the charge is that you helped al-Qaeda, and you’ve had your hearing before the CSRT. And now you go to the D.C. circuit, and here’s what you say: “The CSRT is all wrong. Their procedures are terrible. But, Judge, for purposes of argument, I concede their procedures are wonderful, and I also can conclude it reached a perfectly good result.” OK? So you concede it, for argument’s sake. But what you want to say is: “Judge, I don’t care how good those procedures are. I’m from Bosnia. I’ve been here six years. The Constitution of the United States does not give anyone the right to hold me six years in Guantanamo without either charging me or releasing me, in the absence of some special procedure in Congress for preventive detention.” That’s the argument I want to make. I don’t see anything in this CSRT provision that permits me to make that argument. So I’m asking you: Where can you make that argument?

PAUL CLEMENT: I’m not sure that he can make that argument, Justice Breyer.
JUSTICE STEPHEN BREYER: Exactly.
PAUL CLEMENT: I’m not sure he can make—
JUSTICE STEPHEN BREYER: If he cannot make that argument, how does this become an equivalent to habeas, since that happens to be the argument that a large number of these 305 people would like to make?

For the full discussion, go to the democracy now website.

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