Habeas Found?

Today the Supreme Court ruled in favor of habeas corpus once again, ruling as unconstitutional the provision in the Military Commissions Act of 2006 that denied detainees the right of filing a habeas corpus petition. Habeas corpus, first used in England in 1305, is the right, guaranteed under the U.S. Constitution, to ask for the reasons for and challenge your imprisonment.  It is the idea that no one, not even a King, Queen or President, can arbitrarily lock someone away without any charge or right to defend yourself against that charge.  An idea under attack by the Bush administration, under the guise of September 11.

As noted by today’s New York Times article, the administration first tried to claim the laws that U.S. Courts could hear habeas corpus petitions for detainees didn’t apply, because Guantanamo was outside the U.S. and U.S. jurisdiction.  Huh, who’s in control at Gitmo, then, the Cubans?  Right.  Fortunately, the Supreme Court didn’t fall for that one either, and said since the U.S. was in control of Guantanamo, U.S. courts could indeed hear the habeas corpus petitions.  Then the 2005 Detainee Treatment Act and Military Commission Act of 2006 were passed by Congress and signed into law by the President, providing an alternative process that Amnesty International, the ACLU and others found inadequate; as does the Supreme Court now (or at least the majority).

Writing for the majority, Justice Anthony M. Kennedy said the truncated review procedure provided by a previous law, the Detainee Treatment Act of 2005, “falls short of being a constitutionally adequate substitute” because it failed to offer “the fundamental procedural protections of habeas corpus.”

Justice Kennedy declared: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Justice Scalia saw things differently, as quoted in the Washington Post:

The decision brought biting dissents from the four conservative justices, with Justice Antonin Scalia taking the unusual step of summarizing his opposition from the bench. “America is at war with radical Islamists,” he wrote, adding that the decision “will almost certainly cause more Americans to be killed.” He went on to say: “The Nation will live to regret what the court has done today.”

Does doing away with our constitutional safeguards really make us safer?  Remember the fact sheet from Amnesty on Guantanamo from the January 11th Global Protest?  Statistics like: 53% of detainees not determined to have committed any hostile act against the United States, 40% with no definitive connection with Al Qaeda, 18% with no definitive connection with Al Qaeda or the Taliban; with only 8% characterized as Al Qaeda fighters.

How did we get them?  “At the time when the United States offered large bounties for suspected enemies: 86% [of the] detainees were not detained on the battle field but instead arrested by either Pakistan or the Northern Alliance and turned over to United States custody.”

Are we really safer at night because anyone can turn in someone they may not like for cash, with the person having no right to contest, or even know the charges against them? Would we feel more secure, if, after the next Tim McVeigh, that logic is applied on U.S. soil for the “enemy within”?

Fear not, then.  Bush is looking for new loopholes, according to the Washington Post:

A disappointed President Bush was not as dramatic. “We’ll abide by the court’s position,” he said in Rome, in the midst of a European tour. “That doesn’t mean I have to agree with it.”

He also said the administration will consider new legislation “so that we can safely say . . . to the American people, ‘We’re doing everything we can to protect you.’ “

Why do I not feel more secure?

According to the New York Times, McCain is “concerned” about the ruling (he helped craft the Military Commissions Act).  I’m happy to say that Obama, on the other hand, is on the side of the Constitution:

Mr. Obama issued a statement calling the decision “a rejection of the Bush administration’s attempt to create a legal black hole at Guantánamo” that he said was “yet another failed policy supported by John McCain.”

“This is an important step,” he said of the ruling, “toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.”

I am glad to see habeas back, but as you’ll see from our Amnesty International main page, our work is not done.  Guantanamo has not closed.  We still have extra-judicial rendition.  We need to convince Congress not to go against the Supreme Court ruling (and the Constitution) this time.  See AI’s press release, take action online, or even consider joining a Close Guantanamo Delegation to the local offices of your U.S. Senator or Representative.



One thought on “Habeas Found?

  1. This is a great day for American constitutionalism. It is shocking, however, that four-ninths of the United States Supreme Court find compelling justification to imprison innocent men (i.e., those who might be exonerated at trial) for life without a constitutionally recognized judicial hearing.

    My take on this case is posted here.


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