In another low moment for American justice, a federal appeals court ruled on Tuesday that detainees held at the prison camp at Guantánamo Bay, Cuba, do not have the right to be heard in court. The ruling relied on a shameful law that President Bush stampeded through Congress last fall that gives dangerously short shrift to the Constitution.
The right of prisoners to challenge their confinement — habeas corpus — is enshrined in the Constitution and is central to American liberty. Congress and the Supreme Court should act quickly and forcefully to undo the grievous damage that last fall’s law — and this week’s ruling — have done to this basic freedom.
The Supreme Court ruled last year on the jerry-built system of military tribunals that the Bush Administration established to try the Guantánamo detainees, finding it illegal. Mr. Bush responded by driving through Congress the Military Commissions Act, which presumed to deny the right of habeas corpus to any noncitizen designated as an “enemy combatant.” This frightening law raises insurmountable obstacles for prisoners to challenge their detentions. And it gives the government the power to take away habeas rights from any noncitizen living in the United States who is unfortunate enough to be labeled an enemy combatant.
The United States Court of Appeals for the District of Columbia Circuit, which rejected the detainees’ claims by a vote of 2 to 1, should have permitted the detainees to be heard in court — and it should have ruled that the law is unconstitutional.
As Judge Judith Rogers argued in a strong dissent, the Supreme Court has already rejected the argument that detainees do not have habeas rights because Guantánamo is located outside the United States. Judge Rogers also rightly noted that the Constitution limits the circumstances under which Congress can suspend habeas to “cases of Rebellion or invasion,” which is hardly the situation today. Moreover, she said, the act’s alternative provisions for review of cases are constitutionally inadequate. The Supreme Court should add this case to its docket right away and reverse it before this term ends.
Congress should not wait for the Supreme Court to act. With the Democrats now in charge, it is in a good position to pass a new law that fixes the dangerous mess it has made. Senators Patrick Leahy, Democrat of Vermont, and Arlen Specter, Republican of Pennsylvania, have introduced a bill that would repeal the provision in the Military Commissions Act that purports to obliterate the habeas corpus rights of detainees.
The Bush administration’s assault on civil liberties does not end with habeas corpus. Congress should also move quickly to pass another crucial bill, introduced by Senator Christopher Dodd, Democrat of Connecticut, that, among other steps, would once and for all outlaw the use of evidence obtained through torture.
When the Founding Fathers put habeas corpus in Article I of the Constitution, they were underscoring the vital importance to a democracy of allowing prisoners to challenge their confinement in a court of law. Much has changed since Sept. 11, but the bedrock principles of American freedom must remain.
22 Feb. 2007
David Hicks supporters should take heart from today's outspoken NYT editorial:
at 4:40:00 pm