In confronting international terrorism, President George W. Bush and Congress have abandoned the Founding Fathers' suspicion of unchecked power in favor of the French Revolution's Jacobins.
Their creed, voiced by Louis de Saint Just, proclaimed, "No liberty for the enemies of liberty." Accordingly, suspected enemies were routinely imprisoned without trial based on edicts of the French Terror. President Bush has echoed the militant Jacobins: "We must not let foreign enemies use the forums of liberty to destroy liberty itself." He has similarly detained suspected unlawful enemy combatants at Guantanamo Bay indefinitely on his say-so alone. In so doing, President Bush has suspended the Great Writ of habeas corpus, with the consent of Congress in the Military Commissions Act of 2006, by denying enemy combatant suspects an opportunity to challenge the factual or legal foundations for their detentions before an independent and impartial federal judiciary.
Congress should restore habeas corpus at Guantanamo Bay and renounce the Jacobins' creed. An attempt in the Senate recently failed, but should be renewed.
The Founding Fathers enshrined the Great Writ in the Constitution to prevent the president from judging the lawfulness of his own detentions. Making proper deductions for the ordinary depravity of human nature, they worried that the president would be tempted to cast political or personal enemies into dungeons or to detain in furtherance of a political agenda absent checking by independent judges. A narrow exception was made "in Cases of Rebellion or Invasion [when] the public Safety may require it," neither of which fits September 11, 2001, or the threat of international terrorism.
Proponents of suspending habeas corpus for Guantanamo detainees proclaim their faith in the inerrancy of the United States military in capturing enemy combatants. They contend that habeas corpus would be superfluous because only vile terrorists apprehended on the battlefield are being detained. In support, they summon former secretary of defense Donald Rumsfeld and Rear Adm. John D. Stufflebeem, deputy director of operations for the Joint Chiefs of Staff. Mr. Rumsfeld characterized the detainees as "the worst of the worst." Rear Adm. Stufflebeem chorused: "They are the bad guys. They are the worst of the worst, and if let out on the street, they will go back to the proclivity of trying to kill Americans and others." Members of Congress have scoffed at habeas corpus premised on their trust in President Bush — like the Queen of Hearts in "Alice in Wonderland" — to target only the guilty for detention.
But based on the government's own enemy combatant status determinations compiled by Combatant Status Review Tribunals (CSRTs), the probability of error is great. Restoring habeas corpus is necessary to avert unjust life sentences and the corresponding creation of poster children for al Qaeda's recruiters.
Seton Hall law professor Mark Denbeaux and lawyer Joshua Denbeaux examined the CSRT records for 517 detainees released in 2005. They revealed that 55 percent of the detainees had not committed a hostile act against the United States or its coalition allies. That finding discredits the idea that the detainees are "the worst of the worst." Moreover, "hostile act" was defined to include the following loosely incriminating circumstances: "The detainee fled, along with others, when the United States forces bombed their camp. The detainee was captured in Pakistan, along with other Uighur fighters."
Only 8 percent of detainees were characterized by the CSRTs as "fighters for" al Qaeda. Of the remainder, 40 percent had no connection to al Qaeda and 18 percent were unaffiliated with either al Qaeda or Taliban.
The definition of "enemy combatant" was elusive: "[A]n individual who was part of or supporting the Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners." Definitional vagueness invites error, a hazard compounded by the routine blending of terrorists into civilian populations. Former Secretary Rumsfeld acknowledged: "The circumstances in which individuals are apprehended on the battlefield can be ambiguous. . .. This ambiguity is not only the result of the inevitable disorder of the battlefield; it is an ambiguity created by enemies who violate the laws of war by fighting in civilian clothes."
Only 5 percent of the detainees were apprehended by the United States. The overwhelming percentage was captured by either Pakistan or the Northern Alliance, neither of which fields highly trained military units or other safeguards against mistaken identification. The probability of wrongful detentions rocketed when the United States distributed flyers in impoverished Afghanistan wracked by ethnic, tribal and clan rivalries promising rich bounties for the capture of persons identified as enemy combatants. One flyer, smacking of a Donald Trump infomercial, made economizing on the truth by Afghans irresistible: "Get wealth and power beyond your dreams. ... You can receive millions of dollars helping the anti-Taliban forces catch al Qaeda and Taliban murderers. This is enough money to take care of your family, your village, your tribe for the rest of your life. Pay for livestock and doctors and school books and housing for all your people."
CSRTs are no substitutes for review of enemy combatant determinations by federal courts. The military tribunals rely on secret evidence that cannot be rebutted by the detainee; and, the CSRTs are biased instruments of the executive branch. Lt. Col. Stephen Abraham testified before the House Armed Services Committee: "When we found no evidence to support an enemy-combatant determination, we were told to leave the hearing open. When we unanimously held the detainee not to be an enemy combatant, we were told to reconsider. And ultimately when we did not alter our course ... a new panel was selected that reached a different result."
Contrary to President Bush and Congress, the Great Writ of habeas corpus has a major mission at Guantanamo Bay: averting life imprisonments for the innocent unworthy of a civilized people. Congress should restore the Writ forthwith.
Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.
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