The Supreme Court of the United State of America held that detainees, say like those held in the lovely island paradise at Guantánamo Bay, Cuba, even if named Lakhdar Boumediene, could challenge their detention in an American court using the device of habeas corpus.  In a 5-4 decision, the Court refused to allow the government to suspend that right. It was a glorious day for the Constitution.

Yesterday, we learned that seven petitions for writs of certiorari were denied because not even four justices of that court thought them worthy.  The  Center for Constitutional Rights issued a press release:

June 11, 2012, New York – Today, in response to the U.S. Supreme Court’s denial of certiorari to the cases of seven Guantánamo detainees who had petitioned the Court for review of decisions by the Court of Appeals for the D.C. Circuit, Center for Constitutional Rights (CCR) Executive Director Vincent Warren issued the following statement:

The Center for Constitutional Rights is extremely disappointed in the Supreme Court’s denial of certiorari in the latest set of habeas cases brought by Guantánamo detainees. By refusing to hear these cases, and any Guantánamo cases since its 2008 Boumediene decision, the Court abandons the promise of its own ruling guaranteeing detainees a constitutional right to meaningful review of the legality of their detention. Today’s decision leaves the fate of detainees in the hands of a hostile D.C. Circuit Court of Appeals, which has erected innumerable, unjustified legal obstacles that have made it practically impossible for a detainee to win a habeas case in the trial courts.  The D.C. Circuit, the country’s most conservative court of appeals, has reversed every detainee victory appealed to it by the government, and as consequence, district courts in D.C. have ruled in favor of detainees in only one of the last 12 cases before them.

 

For nearly 10 years, the Supreme Court’s involvement has been essential in checking the excesses of Executive-Branch detainee policy and in clearing a path in the lower courts for justice for the detainees. The Court’s refusal to get involved at this critical juncture permits the Court of Appeals to continue to rubber stamp the military’s decision-making, undermining our constitutional system of separation of powers.

 

In light of the failure of the courts to carry out their constitutionally-assigned role, CCR calls on the President to fulfill his promise to close Guantánamo, the most infamous prison in the world. He should begin by releasing the 87 men who military, intelligence and law enforcement agencies have unanimously concluded should be released on the grounds that they pose no danger to the United States. 

How peculiar to call on the President to fulfill his promise. Has anything happened since his election in 2008 to suggest that President Obama might possibly do so? Was it not his Justice Department urging the denial of cert in these seven cases?  Is Guantánamo not still a prison for the uncharged?

By their decision in Boumediene v. Bush, the Supremes have assured their place in history as defenders of the black letter of the Constitution.  The head note will read the way it should, that they did not suspend habeas corpus because of blind, stupid fear at a moment of national weakness.  This will be remembered as a brave, bold Court, even if it was a 5-4 decision. 

When non-lawyers pluck a sentence out of a Supreme Court decision to prove their point, it’s always the aspirational one, carefully crafted for posterity so that future generations will appreciate our love of freedom and adoration of constitutional rights.  It’s the black letter quote, the Rule.

As lawyers are often painfully aware, the rule is usually a bad joke, because everything that follows is an exception.  It’s almost a lock that whatever the rule may be, the decision will go the other way.  Sure, the opinion will start with the rule, and include some words that make us proud to be Americans because we have such a glorious rule to guide us, as opposed to those filthy commie heathens who couldn’t care less about our beloved rules.  We are a principled bunch, we are.

And then the opinion goes on to explain why, in this particular instance (and all others remotely similar) the rule doesn’t apply. Conviction affirmed.

We can always be proud of our Supreme Court for the strength and dedication it showed in Boumediene.  And who will remember the seven cert denials yesterday, that lay bare what a load of crap it all is.  When they write the history books, nobody remembers the cert denials anyway.

And besides, if the government says they’re all enemy combatant terrorists, what gives a court the authority to disagree?