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New brief in Boumediene

Lawyers for Guantanamo Bay detainees in the Supreme Court cases argued last Wednesday have asked the Court to allow them to file a new brief to bolster their claim that the captives should have the legal right to test the military’s reasons for continuing to hold them in prison in Cuba.

The brief submitted Tuesday evening in Boumediene v. Bush (06-1195) bears upon the history of the right of individuals held in detention to challenge their captors in court. The detainees have asked the Court to rule that they have a “common law constitutional right” to pursue such a challenge in U.S. courts, and to rule that the right has existed since 1789. (The Supreme Court will not consider the new brief unless it grants permission to formally make it part of the cases. The brief can be found here. Presumably, the Justice Department will respond.)

The brief indicated that it was prompted by remarks that U.S. Solicitor General Paul D. Clement made during last week’s oral argument, in exchanges with several Justices. Clement cited two cases decided in Britain in 1941, saying they showed that courts hearing common law habeas claims did not allow prisoners to test the government’s reasons for holding them. The cases were not cited in the written briefs on the government’s side, the detainees’ new brief noted.

“The cases,” the new brief argued, “do nothing to rebut the clear historical evidence thathabeas courts before 1789 allowed persons detained by the executive without criminal process to challenge the factual basis for their confinement.”

The two cases, it went on, “relied squarely on unique emergency leigslation passed by Parliament at the outset of World War II that allowed broad detention, and both cases are widely viewed today as discredited.”

The reason the prior history of the habeas writ figures in the cases now before the Court is that the detainees argue that it is in that form — especially as they say it existed under the Judiciary Act of 1789 — that the Constitution protects it from suspension by Congress. The detainees contend that they had the right at common law, and that Congress’ legislation in 2006 to take it away violates the Suspension Clause.