Habeas Corpus Can’t Wait

Last week, the Court of Appeals for the District of Columbia acted to return Guantanamo detainees to the Supreme Court. They ruled against the detainees , holding that they have no rights under the Constitution, thanks to the Military Commission Act of 2006.

Partisans of the rule of law look forward to the High Court’s intervention, expecting the court to rule for the detainees on the bottom-line question (of a right to writ of habeas corpus , or the right to challenge one’s detention). Many in Congress will be tempted to hang back now and allow the federal courts to finally rule on the pivotal issues presented by cases, which first filed more than five years ago.

But we should not give in to the temptation to let the court pick up the slack for a legislature that has singularly failed to live up to its oversight responsibilities. Whether or not a court finds that the detainees have constitutional rights cannot and will not answer the many difficult questions raised by the detainees’ predicament. And there is much that Congress can and must do, regardless of how the court rules.

The detainees at Guantanamo have been waiting for their day in federal court since January 2002, when the first petitions of habeas corpus were filed. From the beginning, the relief they sought has been narrow: not the automatic right to walk free, but the right to challenge the factual basis of their detention before an independent decision-maker. From the beginning of the Guantanamo regime, it has been clear that government claims that the camps housed “the worst of the worst” were factually wrong-and that the government knew as much.

This, however, is an administration that does cakewalks, not climbdowns.

Delay in the day of reckoning occurred not due to the detainees’ lawyers, but through a series of increasingly reckless maneuvers by the administration and its lawyers to avoid any review of the factual grounds for detention. First the government argued that Guantanamo was not part of the United States, and the president’s sweeping judgment that anyone picked up by the CIA from Bosnia to Pakistan via Thailand must be an “enemy combatant,” and therefore undeserving of any judicial solicitude. Then there were legislative efforts, in the form of the 2005 Detainee Treatment Act and the 2006 Military Commissions Act, to stymie review.

It is important again to emphasize that what the government has sought to avoid is not simple “release.” What the D.C. Circuit held last week was that the Military Commission Act stripped the courts of power even to hear the detainees’ pleas. And at best the Supreme Court will determine that the detainees have a right under the Constitution to be heard. None will necessarily be released. None will even immediately get a day in court. The best case scenario is that the mere prospect of review will push the government into moving forward with releases.

But this is not enough. To understand why, look at the section of Guantanamo called Camp Six. Camp Six is the “more comfortable” facility in which detainees who have been “cleared” are held. As James Cohen’s recent account for the National Law Journal makes clear, detainees in Camp Six are kept in cells with walls, floors and ceilings of solid metal for 22 hours a day, denied natural light or air and have virtually no contact with human beings other than guards. Conditions are worse than any Supermax facility in the United States.

Thus, it is not sufficient to ensure that the detainees have their day in court. Even those who the government concedes to be innocent of any terrorist involvement are still kept in brutalizing and inhumane conditions. A comprehensive solution to the Guantanamo problem requires much more. And, acting alone, the courts have only limited capacity to that end.

So Congress, too, must act, and there is much that it can do now. The court proceedings are no cause for delay. A comprehensive solution necessarily involves multiple branches of government, and the sooner legislators act, the sooner America can remove the moral stain of Guantanamo from its plate.

Yet action will not be easy. With the Senate in Democratic hands by only a slim margin, and with no means of stopping filibusters, the chances of enacting a comprehensive solution to the global detention problem are non-existent. At best, this Congress may redress some of the worst aspects of the Military Commissions Act of 2006. As Human Rights Watch indicated in its recent “Common Sense Agenda” for Congress, restoration of the “Great Writ” of habeas corpus ought to be at the top of the list of must-dos.

Two bills introduced by Senator Christopher Dodd, and Senators Arlen Specter and Patrick Leahy, do this in whole or in part. The Dodd bill is more comprehensive, and its provision on restoring habeas is more carefully drafted.

Nevertheless, whether these bills pass or not, there is vital oversight work that the Judiciary, Armed Services and Intelligence Committees have been tardy in doing these five years. It is these committees, as much as the courts, that have the constitutional power to shine a light on Guantanamo.

There are many who will be hesitant about leaving much to the democratic branches. In theory, democratic bodies should respond best to majorities, and sideline minority concerns. (In practice, to be sure, well-organized and financed minorities, such as industrial lobbies, often yield unwarranted clout-but that is the result of America’s eccentric belief in privatized campaign financing). Worse, minorities who lack representation, and who are the subject of racial animus, will be the brunt of cumulatively bad measures.

Without question, the immigration and counter-terrorism debates evince this dangerous dynamic. Nevertheless, the experience of other countries gives hope that democratic majorities can do better.

Last week, the Canadian Supreme Court invalidated an indefinite detention scheme because it failed to provide procedural protections to ensure accurate determinations of dangerousness. If the American experience provides a general guide, this should have prompted massive retaliation, just as the Hamdan v. Rumsfeld decision provoked the Military Commissions Act.

Instead, the Canadian House of Commons voted down, 159 votes to 124, the renewal of two provisions of an antiterrorism bill that allowed warrantless detention for brief periods. The Canadian legislature focused on the record of counter-terrorism measures over the past five years and concluded the two provisions were unwarranted infringements on human liberties.

The British Parliament too has shown spine in the face of government fearmongering. In November 2005, in the wake of the 7/7 bombings, the Blair government proposed an extension of counterterrorism preventative detention from 14 days to 90 days. Despite heavy lobbying from the Metropolitan Police, the measure was defeated 391–322. It is especially striking that the British Parliament was able to focus on the real issues of proportionality and due process.

Congress can do just as well as its common-law cousins. We the people must now hold it up to their high standards.

Aziz Huq directs the Liberty and National Security Project at the Brennan Center for Justice. He is co-author of Unchecked and Unbalanced: Presidential Power in Times of Terror, and recipient of a 2006 Carnegie Scholars Fellowship.