- The Washington Times - Monday, September 18, 2006

Fear distorts judgment. President Bush is trying to frighten Congress into crippling the Great Writ of habeas corpus, the best shield ever invented against arbitrary executive detentions.

The president’s proposed Military Commissions Act of 2006 (MCA) — even as amended by Republican Sens. John McCain, John Warner and Lindsey Graham — would deny the Great Writ to alleged illegal combatants detained indefinitely in U.S.-controlled facilities. Not a crumb of evidence has been adduced showing the public safety requires the measure. Congress should balk.

Habeas corpus is the legal procedure for detainees to challenge the factual and legal foundations of their detentions before an independent and impartial federal court. The Great Writ emerged not from academic theorizing but from a history of executive abuses. In England, kings were notorious for “disappearing” subjects into dungeons. Habeas corpus made an initial appearance in the Magna Carta of 1215. It was available during America’s entire Colonial experience, and was enshrined in the Constitution. Article I, section 9, clause 2 declares: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

The Founding Fathers understood human nature does not change and unchecked executive power risks wrongful or oppressive detentions. Guided by those insights, Congress has suspended the writ on but four occasions, and for limited times and in places of active combat. It has kept the suspension threshold high.

President Bush’s MCA, in contrast, would lacerate the Great Writ without a finding of either an international terrorist invasion or a public safety need. An alleged illegal combatant would be stripped of his customary habeas corpus right to challenge the lawfulness of his treatment, for example, torture, or his indefinite detention at Guantanamo Bay.

An illegal combatant would be loosely defined as any person affiliated with or supporting an international terrorist organization engaged in hostilities against the United States in violation of the law of war. In Hamdi v. Rumsfeld (2004), the Supreme Court held constitutional due process entitles illegal combatants to a fair opportunity to dispute their designations before an impartial tribunal. Concurrently, in Rasul v. Bush (2004), the Court sustained the right of illegal combatants at Guantanamo Bay to challenge the legality of their detentions in habeas corpus proceedings.

Clipping the Great Writ might be justified if its post-September 11 invocation was creating legal havoc or threatened release of genuine enemies to return to fight against the United States. The life of the law should be experience, not theory. But neither the president nor Congress has proffered any evidence habeas corpus would enable illegal combatants to fool federal judges into thinking they were hospital workers or lost tourists on the battlefield. Sen. Lindsey Graham, South Carolina Republican, in defending the Great Writ’s curtailment, bemoaned the alleged undue burden on federal courts and the frivolity of many legal claims, not the risk that cock-and-bull stories would be believed.

It is worth underscoring that habeas corpus is not a “get out of jail free” card, but simply an opportunity for the adjudication of legal claims by federal judges who are repulsed by terrorists every bit as much as are executive officials or legislators. Zacarias Moussaoui was tried and sentenced in a federal court without endangering the national security. There is no reason to believe the case would be different for illegal combatants challenging their detentions or treatment.

The MCA would be less troublesome if President Bush’s designations of illegal combatants were infallible. Jane Mayer in the July 3 New Yorker, however, reported that in August 2002 a confidential CIA dispatch to Washington concluded most Guantanamo Bay detainees “didn’t belong there.”

Former Guantanamo commander Gen. Jay Hood, deputy commander Gen. Martin Lucenti and interrogators have also publicly agreed “a large number” of Guantanamo detainees “shouldn’t be there … and have no meaningful connection to al Qaeda or the Taliban.” Jose Padilla was initially detained as an illegal combatant, but that designation has been dropped in favor of a criminal prosecution. The Defense Department has released scores of illegal combatants after internal reviews demonstrated the initial designations were erroneous.

Habeas corpus for illegal combatants is thus not a superfluous affirmation of indefinite detentions already known to be reliable, but a necessity to avoid wrongful deprivations of liberty. Congress should reject its proposed diminishment in the MCA. The difference between civilization and barbarism is the difference between caring that justice is done and indifference to injustice. Al Qaeda should not carry us back to the Stone Age.

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

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