Published on Friday, September 22, 2006 by the Baltimore Sun (Maryland)
America's Detainees Face Grave Injustice
by Jonathan Hafetz
More than two years ago, the U.S. Supreme Court ruled in Rasul v. Bush that prisoners at Guantanamo Bay have the right to challenge their detention in federal court through habeas corpus. No longer, the court said, could Guantanamo operate as a prison beyond the law.
In June, the Supreme Court reaffirmed that principle in Hamdan v. Rumsfeld, striking down the president's jury-rigged system of military commissions established to try suspected terrorists for war crimes.
As an attorney, I had the opportunity to work on Rasul when John J. Gibbons, a retired federal appellate judge and partner at the law firm where I then worked, was asked to argue the case in the Supreme Court.
For me, the decision to participate in the case was simple. Yes, I was living in New York City on 9/11, and was close enough to the attacks on the World Trade Center to smell the smoke and feel the heat from the burning towers. But the question was not whether America could imprison terrorists. Of course it could - and must. Rather, the question was whether America would provide a fair process to determine who was a terrorist and who was innocent. That process was guaranteed by the writ of habeas corpus.
For centuries, habeas corpus has protected individual liberty against unlawful detention by the executive. The "Great Writ," as it is known, was brought to America by the first English settlers and enshrined in the Constitution by the Founding Fathers. Just as it restrained English kings from summarily locking prisoners in the tower, it has forbidden American presidents from creating lawless enclaves like Guantanamo.
Habeas corpus is safeguarded so preciously that it has been suspended only four times in the nation's history, and never under circumstances like the present. Past suspensions by Congress were instead carefully limited in duration and done amid an ongoing insurrection or invasion because it was determined necessary to preserve the public safety.
What habeas protects is as simple as it is vital: the power of a court to test the government's asserted basis for a prisoner's detention. It enables a court to listen to evidence and find facts, something judges have done in every courtroom in the country since this nation's founding.
Along with other attorneys, I traveled to Guantanamo after Rasul to meet with detainees, something we were prohibited from doing before the decision. We informed our clients, who by then had been there for almost three years, that finally they would have their day in court.
But instead of coming forward with the evidence to support the Guantanamo detentions before a federal judge, the administration created a mechanism, known as a Combatant Status Review Tribunal (CSRT), to dodge any meaningful inquiry into its allegations. If the military commissions' problems are "glaring," as the Supreme Court said in Hamdan, the CSRT's flaws are positively blinding. Under the CSRT, detainees are not merely deprived of the opportunity to see and confront the evidence against them, as in the military commissions; they are also denied the right to a lawyer and presumed guilty. Further, as a federal district judge in Washington, D.C., ruled last year, the CSRT allows the government to launder evidence obtained through torture. Using such evidence is not only unreliable, it is un-American.
Key Republican senators, including John W. Warner, John McCain and Lindsey Graham, are resisting the administration's effort to create kangaroo courts to try suspected terrorists and to permit the torture or prisoners. Yet the same senators are also sponsoring legislation that would wipe out habeas corpus.
It defies logic and morality to rally behind fair trials but leave the backdoor open to lifelong imprisonment without due process. Indeed, stripping the courts of habeas corpus review would eliminate the very check on the use of secret and coerced evidence that these senators are fighting to preserve.
It is important that all prisoners receive fair trials and be protected from abuse; how we treat the most heinous criminals speaks volumes about our society. But it would be a cruel irony if the few top al-Qaida leaders whom the president plans to charge end up receiving more protections than those prisoners at Guantanamo who are truly innocent and who need only a simple hearing in court to prove it.
As Congress debates, 450 prisoners remain at Guantanamo, still waiting for their day in court. Most will never be brought to trial. If the United States wishes to vindicate the rule of law, it must not deny these people the fair opportunity to be heard that habeas corpus guarantees
Jonathan Hafetz, an attorney at the Brennan Center for Justice at the New York University School of Law, has participated in the Guantanamo detainee litigation since 2003.
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