- The Washington Times - Monday, February 12, 2007

The U.S. Court of Appeals for the District of Columbia Circuit in Omar v. Harvey (Feb. 9, 2007) rebuked President Bush’s tacit post-September 11, 2001, proclamation that, “I am the law.” Speaking through Judge David Tatel, the court of appeals held that an American citizen captured and detained in Iraq by the U.S. military enjoyed the right to petition for a writ of habeas corpus in a federal district court, i.e., a right to demand that the government provide a factual and legal justification for his more than two years of detention.

President Bush, in contrast, insisted that his pronouncement that a citizen is an enemy combatant is a quintessential military judgment that should be conclusive on federal courts; that his commander-in-chief authority would otherwise be crippled; and, that he could not achieve military victory if his infallibility was questioned in habeas corpus proceedings.

The Omar case teaches a different lesson. It teaches that the rule of law — even in times of war — strengthens national security without handicapping the military. It teaches James Madison’s understanding in Federalist 48: “An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others.”

In late October 2004, U.S. military forces arrested Shawiq Ahmad Omar, a dual citizen of both the United States and Jordan, at his Baghdad home.

Mr. Omar claims he traveled to Iraq after Saddam’s overthrow in search of reconstruction work and would have departed by November 2004 but for his arrest and detention. On the other hand, the U.S. government claims Mr. Omar was captured during a raid on associates of arch-terrorist Abu Musab Zarqawi; that he was part of Zarqawi’s network who facilitated terrorism both in and outside Iraq; that four Jordanian foreign fighters and an Iraqi insurgent were captured along with Mr. Omar; and, that weapons and materials for making improvised explosive devices were found in his home.

Following Mr. Omar’s arrest, a three-member panel of American military officers convened to resolve his status. He was permitted to see the incriminating evidence, to make a statement, and to call “immediately available” witnesses. The panel then declared Mr. Omar to be a “security internee under the law of war” and an “enemy combatant” in the war on terrorism. He has been in the custody of the United States in Camp Cropper, the Abu Graib prison, and Camp Bucca for more than two years without formal charges and allegedly without counsel.

On Dec. 12, 2005, Omar’s wife and son filed a petition for a writ of habeas corpus as Omar’s next friends in the U.S. District Court for the District of Columbia. The petition asserted, among other things, that Mr. Omar’s detention violated his Fifth Amendment right to due process.

The “great writ” traces its origins back to Magna Charta and King John’s disappearing his opponents into dungeons. It was the only common law writ expressly mentioned in the U.S. Constitution. It is not a “get out of jail free” card.

Tens of thousands of habeas corpus petitions are filed annually in federal district courts, but only a microscopic percentage eventuate in the detainee’s release. The writ simply obligates the executive to provide a factual and legal justification for the detention. With regard to post-September 11 detainees like Omar held as enemy combatants, the government has not identified even one case in which a habeas corpus proceeding occasioned the release of a terrorist.

The Military Commissions Act of 2006 suspends the great writ for alien detainees at Guantanamo Bay solely for the sake of appearing “tough on terrorism.” Congress acted without any evidence that habeas corpus was threatening to free unlawful enemy combatants, to distract military personnel, to overwhelm federal courts or to lift the morale of global terrorists.

President Bush could have answered Mr. Omar’s habeas petition by presenting the federal district court with sworn affidavits or other evidence showing Mr. Omar had been collaborating with Zarqawi and was implicated in manufacturing IEDs. That evidence presumably had already been assembled for the three-member military panel. State secrets could have been submitted in camera. The habeas precedent would have been unalarming because only a few citizens have been detained as enemy combatants.

But Mr. Bush’s ambition is executive supremacy and the political optic of appearing ruthless in fighting global terrorism. He thus argued that entertaining a writ of habeas corpus would require the judiciary to interfere with the “executive’s textual constitutional authority to implement foreign policy and military functions for the purpose of protecting national security.” And since the entire world is a battlefield, according to the White House, the president should enjoy the authority to disappear any American citizen anywhere in the world into a dungeon on his say-so alone.

Judge Tatel repudiated that chilling doctrine. But it would be more reassuring to hear presidential aspirants for 2008 renounce Mr. Bush’s asserted powers as commander in chief. Their conspicuous silence bodes ill for the future of the Constitution’s checks and balances.

Bruce Fein is a constitutional lawyer and international consultant at Bruce Fein & Associates and the Lichfield Group.

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