Real ID and the Great Writ
by TChris
TalkLeft has criticized the Real ID Act, as did the New York Times this morning, in part because Congress "tied it to a crucial bill providing funds for American troops in Iraq and Afghanistan" to avoid debating the bill on its merits.
One reason (among many) that the Real ID Act deserves greater scrutiny is "a little-known provision that opponents say would be the first suspension of habeas corpus since the Civil War."
The immigration legislation, known as the Real ID Act, would bar noncitizens from the right of habeas corpus review in federal district courts for most detention and deportation orders. ... [The provisions] would mean anyone held in detention on immigration-related charges or purposes, except asylum seekers, could not file habeas claims.
"It really removes one of the core functions that habeas review has prevented historically, which is a safety valve against manifest injustice resulting from unlawful government action," said Marshall Fitz, the associate director of the American Immigration Lawyers Association. He acknowledged that the bill would provide an alternative recourse before U.S. courts of appeals, but that would be ineffective in many cases.
While a law professor at Temple assures us that the Act merely provides that noncitizens won't "tie up the federal courts," that prediction seems unlikely.
"I don't know what Congress is thinking. If they think this is going to streamline [litigation], it's only going to make it more complicated," [Kerry Bretz, a partner at Bretz & Coven] said. He noted that most habeas cases are seen in district court before one judge, whereas cases come before a three-judge panel in the court of appeals. There are about 2,000 cases currently pending in the 2nd Circuit U.S. Court of Appeals, he said. "They want to take all of the habeas corpus cases - they're not capable of handling their current caseload."
Federal habeas review of denials of liberty are fundamental to the constitutional process that the Framers envisioned. Congress has done too much in recent years (including the dreadful Antiterrorism and Effective Death Penalty Act, the worst law advanced by the Clinton administration) to restrict the writ. This latest attempt to deny district court review of denials of liberty is yet another attempt (and, as the Times notes, a sneaky one at that) to trash the Constitution.
Update (TL): The ACLU weighs in today:
"The Real ID Act was sold as an illegal-immigration fix bill, when in fact it reduces every American's freedom. The provisions of this bill could not have passed on their own. Sadly, their inclusion in a 'must pass' bill means that immigrants and citizens alike will face an unnecessary loss of freedom and privacy."
"The federalization of drivers' licenses, and the culling of all information into massive databases, creates a system ripe for identity theft. New standards could place our most private information - including photographs, address and social security numbers - into the hands of identity thieves. Worse still, an independent commission is currently studying the issue of license security, and, if enacted, Real ID would undermine their efforts."
"The Real ID Act would also unnecessarily harm immigrants. Some asylum seekers will be forced to produce written corroboration of their persecution from those who persecuted them. The act would also eliminate, in some cases, the right of habeas corpus as an avenue for court review for the first time since the Civil War. Such an overhaul of immigration laws shouldn't be slipped into a funding bill for the military."
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