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Question of the Day
The wide-ranging extent of concern about our prison at Guantanamo Bay's effect on the credibility in the world of the values we profess was demonstrated at June 26 rally in Washington, where, as reported by the Associated Baptist Press, "Thousands of Christians and other activists" protested against 'torture, indefinite imprisonment and other tactics the United States has used in the war against terrorism.' "
During the rally, Sen. Tom Harkin, Iowa Democrat, intending to bring back memories of Ronald Reagan at the Berlin Wall, sent a message to George W. Bush: "Tear down that prison!" The Capitol Hill rally was organized by the National Religious Campaign Against Torture, the Leadership Conference on Civil Rights, Amnesty International and the American Civil Liberties Union.
One of the prominent speakers was David Keene, chairman of the large and influential American Conservative Union. (I once spoke at his invitation on a panel there, joining conservative Bob Barr to criticize sections of the Patriot Act.) Said Mr. Keene: "I'm here today because as a conservative, I believe that America is the greatest and freest nation on the face of the earth, and I want to do what I can to make sure that my children and their children will be able to say the same." I share that hope with regard to my children and six grandchildren.
Mr. Keene added: "I believe we can defeat our enemies without compromising the values that have made this nation great. No right is more essential to individual liberty than the right to be free from unjust detention at the hands of government." That is why habeas corpus — as Thomas Jefferson insisted to James Madison — is in the body of the Constitution. In the invaluable Brennan Center for Justice white paper, "Ten Things You Should Know About Habeas Corpus," author Jonathan Hafetz quoted Alexander Hamilton's definition of secret imprisonment as the most "dangerous engine of arbitrary government." Mr. Hafetz, litigation director of the Liberty and National Security Project of the Brennan Center, also cited Defense Secretary Robert Gates (New York Times, March 23) warning that reports of the treatment of the detainees (a.k.a. prisoners) at Guantanamo "taints" the fight against terrorism, and has negatively affected our international credibility.
Another speaker at the June 26 Capitol Hill rally was Sen. Chris Dodd, Connecticut Democrat, a candidate for the presidency, who has introduced the very aptly named "Restoring the Constitution Act of 2007," which aims at removing those sections of the Military Commissions Act of 2006 that emphatically do not reflect the rule of law at the core of this republic.
The Military Commissions Act, contrary to two Supreme Court decisions, bars Guantanamo Bay inmates from use of our federal courts by denying them habeas corpus rights. So did the Detainees Treatment Act of 2005. Also working insistently in the Senate to provide basic habeas corpus rights to prisoners at Guantanamo are Sens. Patrick Leahy, Vermont Democrat, and Arlen Specter, Pennsylvania Republican. At the protest rally Mr. Dodd said that the consequences of weakening habeas protections should be apparent to every American.
But how many Americans could tell you what those protections are and that habeas' roots go back to the Magna Carta of 1215? That's a failure of our school systems for which the No Child Left Behind act provides no remedy. As for the Bush administration's undermining of this essence of our rule of law, Americans have a right to be told, as the Brennan Center report documents, that "there is strong reason to believe that (starting over five years ago) the effort to strip habeas rights from detainees is in fact an effort to hide unlawful conduct (by the government)...
"The administration decided to hold individuals as 'enemy combatants' at Guantanamo precisely because it believed prisoners there would be beyond the protections of American Law, and in particular habeas corpus... Two Justice Department lawyers (warned, however, on Dec. 1, 2001) "that if a court reviewed the detentions, it might find some of them illegal." But those lawyers approved the denial of habeas, as did the administration.
You can see this Justice Department memorandum on page 29 of "The Torture Papers: "The Road to Abu Ghraib" edited by the NYU Law School's Center on Law and Security and published by Cambridge University Press. The huge, meticulously researched book is a boon to future historians and to we the people right now — as is "Ten Things You Should Know About Habeas Corpus." Philanthropists, concerned with protecting the Constitution, should send copies of both to every member of Congress.
By Ted Cruz
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