- The Washington Times - Monday, February 26, 2007

The Great Writ of habeas corpus is to the rule of law what oxygen is to life.

The U.S. Court of Appeals imprudently crippled the writ last week in Lakhdar Boumediene v. Bush (Feb. 20). A divided three-judge panel declared suspected alien enemy combatants held indefinitely at Guantanamo Bay may not question their detentions in federal courts though petitions for writs of habeas corpus under the Military Commissions Act of 2006 (MCA). Writing for a 2-1 majority, Judge Raymond Randolph mistakenly endorsed a cramped interpretation of habeas corpus as though he were addressing a tax exemption in the Internal Revenue Code.

Absolute power corrupts absolutely. Accordingly, the Great Writ prevents the president from disappearing political opponents or the unpopular into dungeons based on his say-so alone, a frightening power that has earmarked despots from time immemorial. The writ enables detainees to require the president to establish the factual and legal foundations for their detentions before an independent judiciary.

The goal is justice, the end of civil society as James Madison explained in the Federalist Papers. The president may be inclined to detain bogus enemy combatants in the war against global terrorism to inflate public fear and to justify executive aggrandizements, for example, spying without judicial or legislative oversight in contravention of the Foreign Intelligence Surveillance Act of 1978. A former commandant and deputy commandant at Guantanamo Bay have averred that most of its detainees do not belong there.

The Great Writ does not threaten to release a single genuine enemy combatant. The burden to defeat the Great Writ is modest: plausible evidence (far short of proof beyond a reasonable doubt) that the detainee was implicated in active hostilities against the United States. In Rasul v. Bush (2004), the Supreme Court held the federal habeas corpus statute extended to aliens at Guantanamo. Two years later, Congress overruled Rasul in the MCA by suspending the Great Writ for alien enemy combatants detained anywhere. Its proponents were unable to cite a single habeas case either before or after Rasul that precipitated the release of an authentic terrorist. Such a case might be hypothesized with a fevered enough imagination. But the law would become “a ass, a idiot,” in the words of Charles Dickens’ Mr. Bumble, if required to answer jumbo speculations that never happen in the real world.

Article I, section 9, clause 2 of the Constitution (Suspension Clause) declares “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless in Cases of Rebellion or Invasion the public Safety may require it.” Judge Randolph tacitly acknowledged in Boumediene that neither habeas exception justified the MCA, i.e., global terrorists have not invaded America. He insisted, however, that the Great Writ has no application to aliens detained outside the sovereignty of the United States; and, that Guantanamo Bay is under the sovereignty of Cuba, albeit subject to a perpetual United States lease.

The latter observation is risible. Fidel Castro has no more access or control over Guantanamo than he does over Washington, D.C., or Des Moines. If Mr. Castro formally abandoned sovereignty over Guantanamo tomorrow, nothing would change.

Judge Randolph maintained that a declaration by the political branches in the MCA that Guantanamo is not part of the United States is conclusive on the courts. But the dimensions of the Great Writ — which defines what we are as a people — should not be so easily contracted by semantic jugglery.

Judge Randolph observed that historically the Great Writ in Great Britain was withheld from remote islands, garrisons and dominions. Compliance with a writ from overseas would have been impractical because of time limitations for producing the detainee. But as Chief Justice John Marshall taught in McCulloch v. Maryland (1819), the Constitution was designed to endure for the ages and to be construed accordingly to achieve its purposes. Congress is empowered to create an Air Force, although the Constitution speaks only of armies and navies. The Fourth Amendment protects against indiscriminate government interceptions of e-mails and conversations, although its language speaks only of persons, houses, papers and effects. Similarly, the Great Writ should apply to suspected alien enemy combatants detained abroad unless compliance would be impractical or unworkable.

No civilized Constitution risks injustice for the sake of injustice, aside from the folly of creating poster children to boost al Qaeda’s recruitments. The Supreme Court should grant review of Boumediene and reverse the appeals court.

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

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