New brief in the Boumediene case

Interesting development in that the detainees in Bouemediene v. Bush are arguing that they have a "common law constitutional right" to habeas corpus.

Basically, they are saying the common law (which is widely understood to be the basis of our current system -- see Blackstone's Commentaries on the Laws of England -- a book said to be on the desk of every person during the Constitutional Convention) embraced the principles of their case prior to the creation of federal judiciary. Therefore, this right precedes the authority of Congress to change it.

They are in effect asking the court to equate the right of habeas to natural right as written in our Declaration - our primary organic document. The difference, of course, is that natural rights have no suspension clause, that is to say, no time at which the legislature is authorized to withdraw recognition of the right.

Although common law arguments are always interesting, they carry small weight simply because our system, though built on common law and carries with it many of the principles, is a different system. The question continues to turn on whether or not these particular detainees even have the right of habeas given their circumstances and identity, not necessarily whether or not Congress has the right to remove it.