The United States Senate will vote this week on a rule-of-law amendment to the Department of Defense Authorization bill that would make Americans safer and enhance international collaboration against terrorism.
Sponsored by Sens. Pat Leahy, Vermont Democrat, and Arlen Specter, Pennsylvania Republican, and supported by former chief judge advocates for the Navy and Marine Corps, the amendment would restore the Constitution's Great Writ of habeas corpus to 375 Guantanamo Bay detainees labeled as "unlawful enemy combatants" by President Bush. The Great Writ was suspended by the Military Commissions Act of 2006 (MCA), and left detainees without court access to question the factual foundations of their detentions.
The president is not infallible, especially in times of conflict when judgments are distorted. (Remember the 120,000 Japanese Americans detained in concentration camps during World War II based on erroneous suspicions of disloyalty). Terrorists routinely blend into civilian populations, making their identifications problematic. The definition of an enemy combatant is also vague and far beyond active participation in hostilities against the United States.
The vast majority of Guantanamo detainees were captured by questionable friends like the Northern Alliance with motives to fabricate either to receive bounties or to destroy tribal, ethnic or religious adversaries. They have been captured from 14 different countries around the world, including places far distant from any traditional battlefield such as Thailand, Gambia and Russia.
A former commandant and deputy commandant at Guantanamo have averred that a large percentage of its detainees do not belong there. Hundreds have been released after an internal review by military authorities.
And erroneous detentions occasioned by suspending the Great Writ are cursed on four counts: inflicting life sentences on the innocent; creating poster children for al Qaeda and Al Jazeera, like Abu Ghraib's victims; dishonoring the United States legal system; and, making the nation's allies reluctant to cooperate in defeating international terrorism through intelligence sharing or extradition. The Council of Europe has already voiced consternation over the absence of legal safeguards for suspected enemy combatants held by the United States. Without international cooperation, however, terrorism will never be crushed. The planning and execution of September 11, 2001, implicated many countries.
An expected filibuster to the Leahy-Specter amendment should be defeated. Moderate Republicans, like Nebraska's Sen. Chuck Hagel, should support cloture. The Great Writ creates no legal rights, but simply offers detainees an opportunity to question the legality of their detentions before an impartial judge. The burden on the executive is untroublesome. Prior to its suspension in the MCA, the Great Writ had not released a single suspected enemy combatant by court order. And even assuming the 375 Guantanamo detainees filed habeas corpus petitions with the Leahy-Specter amendment, federal courts would not be overburdened. In fiscal 2006, more than 22,000 federal habeas petitions were filed by jail or prison inmates. Another 375 would be a microscopic increase.
Detractors of restoring the Great Writ argue that international terrorists do not offer detainees corresponding protections; and, that Guantanamo detainees enjoy more legal privileges than enemy combatants in previous conflicts.
But the savagery of al Qaeda should not be the standard of the United States. During World War II, America would have been justly reviled if it had administered cyanide gas to German POWs to retaliate for the Third Reich's Holocaust. As then-Defense Secretary Donald Rumsfeld warned the day after September 11, the terrorists will have triumphed if they force us to abandon our values and the way we live. The Great Writ should be restored because of what it will say about the United States as a civilized nation. Moreover, to neglect the restoration would place American civilians at risk by the pernicious precedent.
Suppose an enemy detained a suspected nurse, interpreter or engineer employee of a U.S. military contractor for allegedly providing material assistance to the armed forces. The American detainee is denied access to an attorney or to any court to challenge the legality of the indefinite detention without charge. The enemy could justify the outrage by pointing to the United States suspension of the Great Writ for Guantanamo detainees.
That Guantanamo is no second edition of Abu Ghraib, South Vietnam's tiger cages at Con Son Island, or the Black Hole of Calcutta is no excuse. Guantanamo is tantamount to a potential life sentence without accusation or trial, a monumental injustice when inflicted on the innocent — even if their last names are ordinarily foreign and unpronounceable.
The United States will have lost its reason for being if it withholds time-honored protections against injustice for the sake of being brutish. And the American people will be less safe because brutishness breeds new terrorists.
Accordingly, the Senate should vote to restore the Great Writ.
Bruce Fein is a constitutional lawyer at Bruce Fein & Associates, chairman of the American Freedom Agenda, and author of the forthcoming book, "Constitutional Peril: The Life And Death Struggle Of Our Constitution and Democracy."