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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."

< Your Military At Work | Conference Report on Real I.D. Bill Published >
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  • Re: Real ID and the Great Writ (none / 0) (#1)
    by Dadler on Sat Dec 17, 2005 at 12:58:43 PM EST
    don't you love one party rule? especially when it's the party you never vote for. being a southern california liberal is like being a martian in the larger scheme of american politics. they know we might exist, but it's just not worth the trip to find out.

    Re: Real ID and the Great Writ (none / 0) (#2)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:58:43 PM EST
    How could this be constitutional? Is there an invasion or rebellion I haven't heard about? "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

    Re: Real ID and the Great Writ (none / 0) (#3)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:58:43 PM EST
    No habeas corpus and tasers everywhere. Yikes!

    Re: Real ID and the Great Writ (none / 0) (#4)
    by jimcee on Sat Dec 17, 2005 at 12:58:43 PM EST
    Perhaps H.C. would be an issue as it pertains to US citizens and documented aliens but to think that those who have broken the law as an 'alien' would be treated the same way as a legal citizen et al, is wrong. To suggest that the H.C. rule has been suspended is rather extreme and doesn't add anything new to the immigration arguement overall. It just seems a rather reactionary response against GWBushCo but not an honest assesment. I would prefer to see people being more positive and try to do well regardless of thier own politics but I guess it is always easier to be negative. The politics in general are just getting too petty and unproductive. Perhaps its time for a giant Middle uprising to come because the Left and Right seem to be a bit out of touch with normal folks. Just Sayig.....

    Re: Real ID and the Great Writ (none / 0) (#5)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:58:43 PM EST
    No offense, Jimcee... ...but maybe it is those "normal folks" that should awake from their drunken materialist stupor and take a look around every once in awhile. Good people, just trying to provide for their family -- but where does all of that unused crap out in the garage come from, anyway? Who picked my fruit, who died to ensure that petrol got to the local Circle K? BTW - I go to work everyday to provide too..why is it that I have time to give a damn, but no one else does? I meet countless everyday whose opinions were apparently given to them shrinkwrapped in Corporate gift paper.

    Re: Real ID and the Great Writ (none / 0) (#6)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:58:43 PM EST
    To suggest that the H.C. rule has been suspended is rather extreme
    Well, how else would you characterize a rule that bars habeus corpus? Are the facts "extreme"?
    Perhaps H.C. would be an issue as it pertains to US citizens and documented aliens but to think that those who have broken the law as an 'alien' would be treated the same way as a legal citizen et al, is wrong.
    The Constitution doesn't limit habes corpus to US citzens. See the passage I quoted above--nothing in there about "citzens," is there? See also the 14th Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law" Note how the constitutional guarantee of "due process" extends to all "persons," not just citizens.

    Re: Real ID and the Great Writ (none / 0) (#7)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:58:43 PM EST
    We are a rogue state in the world and we have apologists for the violation of our most important legal protections. Torture of "illegal combatants" is ok. Access of the Red Cross to detainees is not necessary. Ghost detainees being held, tortured off the "books" around the globe, rendition to Uzbekistan and other bastions of human rights. Habeas corpus is a problem. You can't have the corpus of the ghost detainees, that's why they are ghost detainees. When does the trial start for the #3 Al Qaeda guy start? My guess? Never, he is ghost status now.

    Re: Real ID and the Great Writ (none / 0) (#8)
    by Richard Aubrey on Sat Dec 17, 2005 at 12:58:46 PM EST
    Conscious, you messed up. al-Libbi is in Pakistan. What they do with him is none of your business. You have no right to judge another country's criminal justice system. You are committing cultural chauvinism. The guy tried and failed to off Musharraff twice--why he's called a mastermind is unclear--and that's an internal matter having nothing to do with you. Get off your self-righteous high horse about how other countries run their own show. Don't you have enough to worry about here in the US? I think those of you without blinders will see that, were the names different, that would be your argument. Castro, for example, gets a pass. Anyway, Pakistan is in the control of a bunch of believers in the Religon of Peace (My Sweet Aunt Fanny) or ROPMSAF for short, and fortunately, al-Libbi doesn't have to worry about being interrogated by Christians or having panties put on his head. So you can rest easy.