A government of laws

There was considerable applause — and much concern by the president and his supporters — when the Senate Armed Services Committee passed a bill more in line with the Geneva Conventions than the president’s proposals. But Sens. John Warner, John McCain and Lindsey Graham also included prohibition of habeas corpus petitions by detainees — contrary to this June’s Supreme Court decision that federal courts have the authority to hear their claims on the lawfulness of their imprisonment and, and conditions of treatment (Hamdan v. Rumsfeld).

Amid the continuing debate in the press, in Congress and around the country on the Senate committee’s “Military Commissions Act of 2006,” little attention is being paid to Section 6 of this Warner-McCain-Graham bill that denies the right to a habeas-corpus hearing not only to Guantanamo Bay prisoners, but to any alien detainee outside the United States designated by the president as an “enemy combatant.”

Much in the Senate committee bill admirably opposes the president’s legislation “clarifying” the Geneva Conventions treatment of prisoners, and his changes in the War Crimes Act that would protect the CIA. But the president has not objected to the habeas ban, and a House bill supporting his proposals also contains the suspension of habeas corpus.

In a Sept. 12 letter to Senate Armed Services Committee Chairman John Warner and its ranking member, Carl Levin, retired Navy Adjutant Gens. John Hutson and Donald Guter (both rear admirals), and retired Marine Corps Brig. Gen. David Brahms emphasized: that forgotten in this removal of habeas petitions are “the vast majority of the detainees who have never been charged, and most likely never will be charged. These detainees… will continue to be held as ‘enemy combatants.’ It is critical to these detainees, who have not been charged with any crime, that Congress not strip the courts of (jurisdiction) to hear their… habeas cases (which) are the only avenue open for them to challenge their detention (as they face) potentially life imprisonment.”

Messrs. Warner, McCain and Graham are being acclaimed by many civil libertarians for insisting in their bill on basic due-process protections for the detainees (provided by the Supreme Court in the 2004 Rasul v. Bush ruling as well as in this year’s Hamdan case). But these senators allowed the suspension of habeas petitions for many detainees, including those who may be entirely innocent. And if the prohibitions on habeas rights become law — the prisoners can be held for the rest of their lives on the secret evidence and the coerced interrogations that the three senators tried to remedy in their bill.

Why do Mr. Warner and Mr. McCain remain silent on the exclusion of any chance for these prisoners to appeal the conditions of their treatment and the conduct of their trials?

And the widely respected Sen. John Warner has stated that he pressed for the bill that bears his name to assure that it will pass the scrutiny of the Supreme Court this time around. He surely must realize that lawyers for the detainees will appeal the sweeping suspension of habeas corpus to this very Hamdan v. Rumsfeld Supreme Court, which may well again overturn the law on constitutional grounds.

In the blizzard of expensive TV ads and scathing stump speeches as the midterm elections approach, I doubt if any of the candidates and their supporters will focus on, or even mention, this assault on habeas corpus. But nine retired federal judges have tried to awaken Congress to this constitutional crisis. Among them are such often-honored jurists as Shirley Hufstedler, Nathaniel Jones, Patricia Wald, H. Lee Sarokin and William Sessions (who was head of the CIA and the FBI).

They write, particularly with regard to Mr. McCain’s concerns about torture, that without habeas petitions, how will the judiciary ensure that “Executive detentions are not grounded on torture”? The judges also remind Congress that the writ of habeas corpus has been suspended only four times in our history — and then, the Constitution states, only in “Cases of Rebellion or Invasion (when) the public Safety may require it.”)

To be sure, Abraham Lincoln suspended habeas during the horrors of the Civil War; but in 1866, the Supreme Court declared that action unconstitutional because the civilian courts were still open during the war — as they still are right now. So, if this suspension becomes law, say these deeply concerned retired federal judges, “there will be protracted legislation for years to come” — and many detainees may never experience justice.

These judges also remind us — and Messrs. Warner, McCain and Graham (the latter has long wanted to undermine habeas) — that, as Chief Justice John Marshall declared, and warned, “ours is a government of laws, not men.” Having certainly acted on principle in putting the president on the defensive, McCain and Warner should now stand up for “the ‘Great Writ.’”

And Thomas Jefferson, as the Constitution was being written, objected even to the inclusion of a clause suspending habeas corpus because of the danger that suspension could be “habitual.”