Judges Tell Congress: Don't Suspend Habeas Corpus

Mon Sep 18, 2006 at 12:46:34 PM PDT

Something very momentous is about to happen. It looks like the McCain Graham Warner version of the military commissions bill is going to pass. While much attention has been paid to the difference between the Bush and these "rebel" Republicans versions, very little notice has been taken of the fact that the McCain version too takes the draconian step of suspending habeas corpus, the linchpin of a free society.

Last Thursday nine former federal judges sent a letter to Congress [pdf text] detailing their opposition to the proposed McCain, Graham, Warner Military Commissions Act of 2006 which would strip US prisoners held outside the United States from their right to habeas corpus.

MediaFreeze's diary :: ::

We applaud Congress for taking action establishing procedures to try individuals for war crimes and, in particular, Senator Warner, Senator Graham, and others for ensuring that those procedures prohibit the use of secret evidence and evidence gained by coercion. Revoking habeas corpus, however, creates the perverse incentive of allowing individuals to be detained indefinitely on that very basis by stripping the federal courts of their historic inquiry into the lawfulness of a prisoner's confinement.

Why is this important? What is habeas corpus? And, why should we care?

Simply, habeas corpus, known as the Great Writ, is vital to a free society because it is the principle means by which government is restrained from indiscriminately and indefinitely imprisoning people. Habeas corpus "is a legal proceeding in which an individual held in custody can challenge the propriety of that custody under the law."

The nine judges write:

The habeas petitions ask whether there is sufficient factual and legal basis for a prisoner's detention. This inquiry is at once simple and momentous. Simple because it is an easy matter for judges to make this determination - federal judges have been doing this every day, in every courtroom in the country, since this Nation's founding. Momentous because it safeguards the most hallowed judicial role in our constitutional democracy - ensuring that no man is imprisoned unlawfully. Without habeas, federal courts will lose the power to conduct this inquiry.

Habeas corpus, which has its roots in English common law going back to the 12th Century, has been the cornerstone of liberty in the United States for the entire history of the country. It is enshrined in the Constitution.

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. (Article One, section nine).

Prior to the Bush Administration, habeas corpus had only been suspended four times. Famously, during the Civil War, by Lincoln and later by Grant in the early 1870's as part of federal civil rights action against the Ku Klux Klan. The United States was able to fight two world wars and numerous international conflicts without suspending the right to a fair trial.

In November 2001 Bush issued a Presidential Military Order giving the President of the United States the power to detain certain non-citizens suspected of connection to terrorists or terrorism as enemy combatants. As a result, that person could be held indefinitely, without charges being filed against him or her, without a court hearing, and without entitlement to a legal consultant. The constitutionality of this order has been challenged and in the famous Hamden vs. Rumsfeld case, the United States Supreme Court ruled 5-3 that the United States Congress could not strip the courts of jurisdiction over habeas corpus appeals by detainees at Guantanamo Bay explicitely rejecting a key provision of the Detainee Treatment Act (DTA) of 2005 which says:

"[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." §1005(e)(1), 119 Stat. 2742.

Now they are back again with another attempt to suspend habeas corpus. Let's be very clear here. The subject of the nine judges letter is not the Bush version of this bill, which explicitly reinterprets the Geneva Conventions, but ALSO the McCain, Graham, Warner supposedly "rebel" alternative. This kinder and gentler version ALSO suspends habeas corpus for US prisoners held overseas.

Section 6 on Page 55 of the 84 page proposed McCain bill [pdf text] includes this clause:

PROVISIONS OF CHAPTER SOLE BASIS FOR REVIEW OF MILITARY COMMISSION PROCEDURES AND ACTIONS--Except as otherwise noted in this chapter and notwithstanding any other provision of law (including Section 2241 of title 28 or any other habeas corpus provision) no court, justice or judge shall have jurisdiction to hear or consider any cause of action whatsoever, including any action pending on or filed after the date of enactment of this chapter, relating to the prosecution, trial or judgement of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

Hilzoy on Obsidian Wings explains:

It would eliminate the right of any alien who is in US custody outside the US, or who "has been determined by the United States to have been properly detained as an enemy combatant", to file for habeas corpus.

*It would eliminate the right of any such alien to take any legal action against "the United States or its agents" concerning the conditions of his or her detention, other than to appeal the results of Civilian Status Review Commissions or military tribunals.

* Both of these provisions apply to all cases pending when the bill becomes law, which means that any of the cases currently wending their way through the legal system that haven't been resolved by that time become moot.

.....

This is a terrible, terrible bill. What bothers me most is the denial of habeas rights. Denying the right to file for habeas corpus to all people detained outside the US, or who have been found to have been properly detained as an enemy combatant, means that virtually all detainees would have no legal recourse if they felt they had been unjustly imprisoned, or if their legal rights had been violated.

Let's be very clear. The McCain Graham Warner Bill will suspend habeas corpus for these detainees. It will allow the US to hold these prisoners indefinitely without compelling them to be put on trial. It will bar these prisoners from any legal recourse for actions against their treatment including torture.

This bill should be titled the John McCain Don't Ask Don't Tell Torture Program, because, while maintaining the current interpretation of the Geneva Conventions, it bars victims of torture from any recourse.

When McCain says he can accomplish the same thing as the Bush approach without reinterpreting the Geneva Conventions, he is talking about revoking habeas corpus.

The American people are being presented a false choice. Both the Bush and McCain bills will not end torture by the US. They will BOTH effectively legalize it.

The question that this country has to ask is: "Are these times so dire that we need to throw away the cornerstone of US liberty and justice? Are we in such danger and do we trust this President so much, that we are willing to topple more than seven hundred years of hard won human rights and hand these protections over to him?"

As the nine Judges conclude:

For two hundred years, the federal judiciary has maintained Chief Justice Marshall's solemn admonition that ours is a government of laws, and not men. The proposed legislation imperils this proud history by abandoning the Great Writ to the siren call of military necessity. We urge you to remove the provision stripping habeas jurisdiction from the proposed Military Commissions Act of 2006 and to reject any legislation that deprives the federal courts of habeas jurisdiction over pending Guantanamo detainee cases.

Please be aware of the enormous historical importance of this legislation. The dynamics of the "debate" around this Bill has focused attention on the issue of reinterpretation of the Geneva Conventions and not the equally dire aspect of the suspension of habeas corpus. The media has presented the McCain Graham Warner bill as the less extreme measure, but that masks the fact that this terrible piece of legislation will also suspend habeas corpus. We need to wake up and take notice of what they are trying to do. Contact your congressional representatives and tell them to protect habeas corpus, the lifeblood of liberty.