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U.S. Must Not Repeal a Basic Right

  • Jonathan Hafetz
Published: November 14, 2005

The Star-Ledger
Monday, November 14, 2005

U.S. Must Not Repeal a Basic Right
By Jonathan Hafetz

With scant debate, the Senate voted on Thursday to step into ongoing cases and short-circuit court review of the detentions at Guantnamo. Buried in the fine-print of a giant defense authorization bill, the measure would violate basic constitutional principles and tarnish our image as a country founded on the rule of law.

The amendment, sponsored by Sen. Lindsay Graham (R-S.C.), seeks to repeal habeas corpus for the more than 500 persons imprisoned at Guantnamo. Long known as the Great Writ, habeas corpus stretches all the way back to the Magna Carta and has been central to our Constitution since the nation’s founding. What habeas corpus provides is very simple—the right of every person to go to court and insist on a fair hearing when he is deprived of his liberty.

In June, the Supreme Court ruled that the federal courts must hear the habeas petitions brought by Guantnamo detainees. It squarely rejected the government’s argument that Guantnamo Bay is a legal no-man’s land, outside the reach of American courts. Since then, detainees have filed petitions challenging their detention, and those petitions are being handled capably by our courts.

Now, remarkably, Congress is trying to kick the courts out of defending the Constitution. The Graham amendment would bar judges from hearing any habeas petition filed by any detainee at Guantnamo—even in ongoing cases.

The amendment instead would provide a meaningless substitute for the Great Writ: It says that a court of appeals in Washington can consider whether the military followed its own procedures. That provides no comfort because those procedures mock due process. Among their other failings, they allow the use of secret hearsay evidence and, even worse, evidence obtained by torture.

To be sure, no one wants to flood the courts with frivolous lawsuits over the quality of peanut butter or better Internet access for prisoners. But that’s not what these cases are about. These cases are about whether innocent people can be imprisoned without the fair hearing our Constitution and laws demand. And that is a question that our federal judges are uniquely qualified to decide.

In defending the amendment, Graham said courts have never heard challenges by prisoners of war captured in battle. But the senator misses the point. The “global war on terror” is like no other war before it.

Most detainees at Guantnamo were not seized anywhere near a battlefield. Some were picked up off the streets in countries as far flung as Ghana or snatched from courthouse steps in Bosnia. Others were swept up by mistake or sold to U.S. forces in exchange for a bounty paid by the U.S. government. And, unlike the Nazi and Japanese soldiers captured during World War II, no20one at Guantnamo was ever given the hearing that we always give to soldiers captured on the battlefield.

A week ago, the Senate had overwhelmingly and courageously reaffirmed the ban on government torture and cruel, inhuman and degrading treatment. But the Graham amendment would undercut that principled decision by suspending the rule of law—including the prohibition against torture—for the prisoners at Guantnamo Bay. Taking away a court’s historic duty of making sure a person’s detention is legal would undermine the checks and balances on which our Constitution rests.

Make no mistake, this suspension of the rule of law would undermine our nation’s efforts to fight terrorists. International condemnation of the perceived “legal black hole” of Guantnamo has been persistent and wide-ranging. Our allies have expressed broad concerns about the legality and morality of placing people beyond the rule of law.

The Graham amendment would do tremendous damage to our reputation overseas by sending the message that we cannot defend the decision to detain those at Guantnamo in a court of law.

In many ways, the war on terror is new. But new challenges have never caused America to shred its oldest constitutional principles. Rather, it is these uncertain times that test the mettle of our commitment to due process.

Constant revelations of how the United States is treating detainees at Guantnamo and elsewhere have damaged our image20around the world. It would be ironic indeed if Congress’ response were not to address the underlying problems but instead to make it more difficult for rights to be vindicated and facts to be learned.

Jonathan Hafetz is associate counsel in the Liberty and National Security Project at the Brennan Center for Justice at the New York University School of Law.