A Government of Laws; Habeas Corpus, War and the Bush Administration

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There was considerable applause and much concern by the president and his supporters when the Senate Armed Services Committee passed a bill more in line with the Geneva Conventions than the president's proposals. But Sens. John Warner, John McCain and Lindsey Graham also included prohibition of habeas corpus petitions by detainees contrary to this June's Supreme Court decision that federal courts have the authority to hear their claims on the lawfulness of their imprisonment and, and conditions of treatment (Hamdan v. Rumsfeld).

Amid the continuing debate in the press, in Congress and around the country on the Senate committee's "Military Commissions Act of 2006," little attention is being paid to Section 6 of this Warner-McCain-Graham bill that denies the right to a habeas-corpus hearing not only to Guantanamo Bay prisoners, but to any alien detainee outside the United States designated by the president as an "enemy combatant."

Much in the Senate committee bill admirably opposes the president's legislation "clarifying" the Geneva Conventions treatment of prisoners, and his changes in the War Crimes Act that would protect the CIA. But the president has not objected to the habeas ban, and a House bill supporting his proposals also contains the suspension of habeas corpus.

In a Sept. 12 letter to Senate Armed Services Committee Chairman John Warner and its ranking member, Carl Levin, retired Navy Adjutant Gens. John Hutson and Donald Guter (both rear admirals), and retired Marine Corps Brig. Gen. David Brahms emphasized: that forgotten in this removal of habeas petitions are "the vast majority of the detainees who have never been charged, and most likely never will be charged. These detainees .. will continue to be held as 'enemy combatants.' It is critical to these detainees, who have not been charged with any crime, that Congress not strip the courts of (jurisdiction) to hear their .. habeas cases (which) are the only avenue open for them to challenge their detention (as they face) potentially life imprisonment."

Messrs. Warner, McCain and Graham are being acclaimed by many civil libertarians for insisting in their bill on basic due-process protections for the detainees (provided by the Supreme Court in the 2004 Rasul v. Bush ruling as well as in this year's Hamdan case). But these senators allowed the suspension of habeas petitions for many detainees, including those who may be entirely innocent. And if the prohibitions on habeas rights become law the prisoners can be held for the rest of their lives on the secret evidence and the coerced interrogations that the three senators tried to remedy in their bill. …