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the Boston Globe

Safeguarding Liberty and Justice for All

Scot Lehigh

The customary July Fourth column is an essay celebrating our tradition of liberty.

But this Fourth, let's tackle a harder issue: How much do we actually value that tradition?

After all, our president has run roughshod over one of liberty's fundamental underpinnings for years, just as a compliant Congress has ignored one of its most vital constitutional safeguards.

I'm talking, of course, about habeas corpus, a prisoner's ability to challenge his imprisonment in federal court.

Thankfully, our Supreme Court has now stepped in to reaffirm those rights.

But just barely. Despite the importance of habeas corpus to the rule of law, only five justices saw fit to uphold those rights for the prisoners at Guantanamo Bay.

One of the great legacies of English common law, the writ of habeas corpus developed as a check on the monarchical habit of arbitrarily imprisoning opponents of the crown. By the time of the American Revolution, habeas was considered so essential to individual liberty that it was written into the main body of the Constitution, and not appended afterward as was the Bill of Rights.

"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 Constitution declares.

Now, we are obviously not in a time of rebellion or invasion. Nor can the Combatant Status Review Tribunals that have judged prisoners at Guantanamo be deemed an adequate - and thus constitutionally allowable - substitute for habeas rights.

The Combatant Status Review Tribunals "lacked every safeguard that we associate with a fair hearing," says Jonathan Hafetz, counsel at the Brennan Center for Justice at New York University School of Law, who filed an amicus brief in the recently decided case. "And the review of those decisions by a federal court was fundamentally restricted."

If one truly supports the principles that safeguard liberty, he or she should support habeas rights even in trying times, for that's when the real test of our commitment to due process comes.

"Everybody is in favor of protecting our rights when it applies to us," notes US Senator Patrick Leahy, chairman of the Senate Judiciary Committee and himself a former prosecutor. "But when it is suspected terrorists, we don't want to protect their rights - even though maybe we have the wrong person."

The tendency Leahy identifies is as lamentable as it is predictable. And to those who say, "But we're talking about terrorists here," the reply is simply: Without due process, how can you be sure?

Further, to argue that habeas rights shouldn't extend to the Guantanamo detainees is to assert that by keeping prisoners outside the United States, the executive branch can create a legal black hole, one where men can be held virtually forever without any true review by the courts.

It's important to note that granting those prisoners habeas rights doesn't mean letting them go. Rather, says civil liberties lawyer Harvey Silverglate, it means allowing them to petition a federal court to review the process that led to their imprisonment. "The court has to determine whether the proceeding used was fair enough that we can have some faith in the accuracy of the result," Silverglate says.

It was no surprise to see Antonin Scalia, the court's most determined - and caustic - conservative, reject habeas rights for detainees - or to see Clarence Thomas and Samuel Alito side with him. But it was dispiriting indeed to have Chief Justice John Roberts join the dissenters on what should be a clear-cut matter.

Fortunately, in Boumediene v. Bush, five justices appointed by four different presidents recognized the centrality of habeas rights. The majority opinion was written by Anthony Kennedy (Ronald Reagan), who was joined by John Paul Stevens (Gerald Ford), David Souter (George H.W. Bush), and the two justices put on the court by Bill Clinton: Stephen Breyer and Ruth Bader Ginsburg.

Those five justices had the fortitude to stand up for this bedrock constitutional principle.

As we celebrate liberty on this Fourth of July, take a second to ask yourself this question: Do I?

Scot Lehigh can be reached at

© Copyright 2008 Globe Newspaper Company.

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