The rule of law just took a beating the D.C. Circuit Court on Jan. 5, when three conservative judges limited the ability of Guantanamo detainees to challenge their detention.

The court, in the Al-Bihani case, said that detainees have a much flimsier set of rights than normal criminal defendants in our court system.

This decision represents a rare frontal attack on the prevailing Supreme Court doctrine, rendered in the Boumediene decision of 2008. In that decision, a majority
of the court, led by Justice Kennedy, said: “We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation of relevant law.’ ”

But the D.C. Circuit Court undercut that “meaningful opportunity” by ruling ruled that a detainee has to show by a “preponderance of evidence” that he is being wrongly held, instead of the usual “reasonable doubt.”

They also said it was OK to presume the accuracy of the government’s evidence, though the Supreme Court in Boumediene stressed “the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant.”

And the D.C. Circuit Court judges also said they were perfectly willing to allow in hearsay evidence, even though the Supreme Court in Boumediene said that when “there are, in effect, in limits on the admission of hearsay evidence…the detainee’s opportunity to question witnesses is likely to be more theoretical than real.”

The D.C. Court rebelled against this. “That such evidence was hearsay does not automatically invalidate its admission,” it said. And it derided the need of the defendant to confront his accusers as a mere “psychic value.”

Also, contrary to the Supreme Court’s decision in Boumediene, they said that standards of international law have no bearing on the treatment of detainees. “We have no occasion here to quibble over the intricate application of vague treaty provisions and amorphous customary principles,” the Circuit Court judges said.

The D.C. Circuit Court retreated from the Supreme Court’s courageous decisions during the Bush Administration that limited executive power.

Instead, the circuit court reaffirmed the arguments of Bush Administration lawyers that granting traditional habeas corpus rights to detainees “would have systemic effects on the military’s entire approach to war” and that “military operations would be compromised.”

But the Supreme Court squarely addressed these arguments in Boumediene and repudiated them. “Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict,” the Supreme Court acknowledged, but it immediately went on to say: “There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.”

Judge Janice Rogers Brown, who wrote the Circuit Court decision, added her own concurring opinion that said: “War is a challenge to law, and the law must adjust. . . . This war has placed us not just at, but already past, the leading edge of a new and frightening paradigm, one that demands new rules be written. Falling back on the comfort of prior practices supplies only illusory comfort.”

Contrast that with the Supreme Court’s penultimate paragraph in Boumediene: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

The D.C. Circuit Court’s decision is a flagrant act of insubordination. It marks a huge step backward, and it underlies the hysteria that has taken over the country since the Christmas bombing attempt.

Matthew Rothschild is the editor of The Progressive magazine. To subscribe for just $14.97 a year, just click here.