Undue Process: The Evisceration of Habeas Corpus

By Kaveny, Cathleen | Commonweal, November 3, 2006 | Go to article overview
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Undue Process: The Evisceration of Habeas Corpus


Kaveny, Cathleen, Commonweal


In mid-October, President George W. Bush signed the Military Commissions Act of 2006, which gives him the power to identify unlawful enemy combatants, to order harsh interrogation of them, and to detain them indefinitely. American forces can snatch an Iraqi man from his bed, shackle him, and ship him off to Guantanamo Bay as a suspected terrorist, where he has no right to a speedy trial.

But what if he's innocent--what if his detention is a mistake caused by the fog of war and the confusion of clashing cultures? The law provides that if a Combatant Status Review Tribunal--or other tribunal established by the president or the secretary of defense--finds that the detainee is an unlawful enemy combatant, that finding is "dispositive." It seems that he can only appeal it to the United States Court of Appeals for the District of Columbia Circuit. If he manages to, it is not clear what good that will do him. Many legal scholars believe the review process has been so hemmed in by Congress that it has little real independent value. But whatever its value, that process is his one shot. Congress has stripped every court in the United States of the power to hear a petition for a writ of habeas corpus on behalf of an alien deemed to be an unlawful enemy combatant. Once his status as an "unlawful" enemy combatant has been determined, no independent court has jurisdiction to hear any claim "relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement." He has no right to a timely resolution of his case; as Robert C. Weaver Jr.'s recent article demonstrates, a detainee can languish in jail for years before facing the charges against him ("No Man's Land," October 6).

What exactly is the writ of habeas corpus? The writ's name, which means "you should have the body" in Latin, gives some clue as to its purpose. In sixteenth-century England, a court issuing the writ ordered a sheriff or warden to produce the prisoner in court, and to show good cause why the prisoner should not be set free. As the writ developed, it became clear that its focus was due process, broadly construed: its goal was to ensure that the trial, detention, and punishment of a prisoner were conducted in a fair way that did not conflict with fundamental moral and political rights.

How should Christians think about this? Are the protections that the writ of habeas corpus offers a matter of man-made law that can be wiped away with the stroke of a legislator's pen, as Congress just did? Or is it a requirement of natural law, based in natural justice? The latter, in my view.

The writ reflects five fundamental moral insights. First, individuals are not mere creatures of the state, to be preserved or discarded as political leaders find convenient.

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