Lawyers Fight for Habeas Rights

By Berrigan, Frida | In These Times, November 2006 | Go to article overview

Lawyers Fight for Habeas Rights


Berrigan, Frida, In These Times


INSIDE THE WHITE House, President George W. Bush sat at a small desk. Surrounded by generals, congressmen and members of his administration, he signed the Military Commissions Act (MCA) into law. "It is a rare occasion when a president can sign a bill he knows will save American lives," he declared.

Outside the White House, it was raining. More than 100 religious leaders, survivors of torture and concerned citizens gathered to mourn the passing of a cornerstone of American law. Many of the marchers wore soggy orange jumpsuits and black hoods over their faces, representing the more than 400 men who remain imprisoned at Guantánamo. The gap between the Bush administration's agenda and the concerns of the activists outside could not have been greater.

The MCA establishes new rules for interrogating and trying suspected terrorists. It also suspends habeas corpus for any foreign citizen determined to be an "unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States." While President Bush called the law, "a way to deliver justice to the terrorists we have captured," the majority of those held at Guantánamo do not fit under even this exceptionally broad definition of unlawful enemy combatant. A Seton Hall Law School analysis of the Pentagon's own findings reveals that the U.S. government considers only 8 percent of 507 Guantánamo detainees to be al-Qaeda fighters. Of the remaining detainees, 40 percent have no definitive connection to al-Qaeda or Taliban.

If, to paraphrase Ambrose Bierce, wars teach Americans geography, are they also how we now learn Latin? "Habeas Corpus"-part of a longer English Common Law phrase that means "you shall produce the body"-dates to the Magna Carta. In 1215, that foundational legal document guaranteed suspects the right to challenge their imprisonment. The "writ of habeas corpus" is enshrined in the U.S. Constitution: it "shall not be suspended unless when in cases of rebellion or invasion the public safety may require it."

Though Attorney General Alberto Gonzalez insists that "the new law should not be understood to 'suspend' the writ of habeas corpus for enemy combatants," there is no other way to interpret it. "This new law is a clear suspension and we are mounting a substantial court challenge," says Bill Goodman, legal director of the Center for Constitutional Rights (CCR).

Between Congress' passage of the MCA in September and Bush's signing on Oct. 17, the CCR continued to file writs of habeas corpus. On Oct. 2, they filed on behalf of 25 men imprisoned at the U.S. military's Bagram Airbase in Afghanistan. The next day, the group filed for Majid Khan-one of the "ghost detainees" recently transferred to Guantanamo after being held in the Central Intelligence Agency's secret detention facilities for three-and-a-half years as a "high-value" terrorist suspect.

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