Habeas

The New York Times editors write,

A Key Moment for Justice

The Supreme Court hears arguments today in a case that offers a chance to redress an enormous wrong done by President Bush and Congress when they denied justice to a group of prisoners. It is the latest phase of a battle over whether detainees held in Guantánamo Bay, Cuba, have the right to bring a habeas corpus challenge to their confinement. The narrow legal issues have changed since the court considered the question last year, but the principle remains the same: The detainees have a right to have a court determine whether the government has a valid basis for imprisoning them.

Habeas corpus is an important bulwark against authoritarianism, so vital that the Constitution expressly protects it. Since the Sept. 11 attacks, however, the Bush administration has fought to weaken it both for foreigners held by the United States and for American citizens.

The fight over Guantánamo has been especially heated. The administration has made a variety of arguments for why the detainees have no habeas rights. Notably, it claimed that the naval base at Guantánamo Bay, Cuba, is outside the reach of American law. So far, the Supreme Court has rejected the administration’s arguments. It specifically ruled that the naval base is functionally part of the United States.

The issue today is whether, after the Supreme Court’s rulings, Congress succeeded in stripping the detainees of their habeas rights when it passed the Military Commissions Act. The act authorized military commissions to hear the detainees’ cases and set up a hollowed-out appeals process in the federal courts. At the same time, the act intended to strip the courts of jurisdiction to hear habeas petitions filed by the detainees.

The Supreme Court should rule that the detainees still have the right to habeas review. The Constitution’s framers put strict limits on Congress’s power to tamper with habeas corpus. The suspension clause says it cannot be suspended “unless, when in cases of rebellion or invasion, the public safety may require it.” Since there was neither, Congress had no right to suspend habeas rights, much less take them away permanently.

In rare circumstances, the court has said alternative procedures can substitute for habeas. But it has required them to be almost identical to the protections of habeas. That is far from the case with the shabby regime set up by the Military Commissions Act, which among other things permits the use of secret evidence. Detainees are barred from submitting some of the evidence they need for their defense. At certain points, they are not allowed to be represented by counsel. Most critically, even if a detainee wins, the court is not authorized to free him.

Habeas imposes serious obligations to treat prisoners fairly. The founders anticipated that Congress would be tempted to limit it, which is why they wrote the suspension clause. The Supreme Court should uphold this critical check on power by ruling that Congress may not deprive detainees of their day in court.

Deader, faster

It seems only fitting that perhaps the most incompetent attorney in the land will now be responsible for deciding if those sentenced to death have been adequately represented (Time$elect).

Death penalty cases can take a long time. Attorney General Alberto R. Gonzales wants to move things along.

Under an odd provision in last year’s reauthorization of the USA Patriot Act, the antiterrorism law, the attorney general is to take on a role that has for more than a decade belonged to the courts. After the Justice Department finishes writing the regulations, Mr. Gonzales will get the job of deciding whether states are providing condemned inmates with decent lawyers.

If the answer is yes, federal litigation in capital cases from those states — one of the main reasons for the lengthy appeals — will move to a fast track. Inmates will have to file habeas corpus challenges in six months rather than a year, and judges will be subject to strict deadlines. Appeals courts, for instance, will get 120 days to decide cases.

The trade-offs themselves are not new, and they are not necessarily a problem. If states can be encouraged to provide able defense lawyers to death row inmates in state proceedings, the federal courts may indeed have less to worry about.

But giving the power to decide when a fast track is warranted to an interested party like Mr. Gonzales is a curious way to run a justice system.

“A first-year law student could spot this conflict of interest a mile away,” said Elisabeth Semel, the director of the death penalty clinic at the University of California, Berkeley, and an opponent of the death penalty.

The move can only represent Congressional dissatisfaction with the decisions of the dozens of federal judges who have considered the adequacy of state systems to provide death row inmates with qualified defense teams over the last decade.

With one partial exception, they have found that the states are not yet where they should be. (The exception is Arizona, which a federal appeals court said had an adequate system on paper, at least as of 1998, though the court also ruled that the system had not been followed in the case before it.)

Opponents of the death penalty say Congress wants Mr. Gonzales to speak power to truth.

“After the courts had repeatedly found that the states were not providing competent defense representation in capital cases, Congress decided to solve the problem by the simple device of having the attorney general announce that it did not exist,” said Eric M. Freedman, a law professor at Hofstra who submitted testimony opposing a version of the new law for the American Bar Association in 2005.

“The attorney general can certify that the moon is made of green cheese, but that will neither make it so nor advance scientific knowledge,” Professor Freedman said. “The way to fix capital defense systems is not to deny that they need fixing, but rather to dedicate the needed resources to improving them.”

Adam Liptak concludes,

It is true that the capital justice system is not efficient. But efficiency cannot be the only goal. Accuracy must matter, too.

“The notion that the federal government wants to accelerate executions in the face of known mistakes, and wants to do so just as DNA is becoming available in more and more cases, is mind-boggling,” Professor Dow said. “It will increase the risk that some state executes a person we later find to be innocent.”

I don't know what the fuss is about. After all, Abu Gonzalez has a long history of defending people heading to the gallows.