Restoring Habeas Corpus

Article excerpt

Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

In confronting international terrorism, President George W. Bush and Congress have abandoned the Founding Fathers' suspicion of unchecked power in favor of the French Revolution's Jacobins.

Their creed, voiced by Louis de Saint Just, proclaimed, "No liberty for the enemies of liberty." Accordingly, suspected enemies were routinely imprisoned without trial based on edicts of the French Terror. President Bush has echoed the militant Jacobins: "We must not let foreign enemies use the forums of liberty to destroy liberty itself." He has similarly detained suspected unlawful enemy combatants at Guantanamo Bay indefinitely on his say-so alone. In so doing, President Bush has suspended the Great Writ of habeas corpus, with the consent of Congress in the Military Commissions Act of 2006, by denying enemy combatant suspects an opportunity to challenge the factual or legal foundations for their detentions before an independent and impartial federal judiciary.

Congress should restore habeas corpus at Guantanamo Bay and renounce the Jacobins' creed. An attempt in the Senate recently failed, but should be renewed.

The Founding Fathers enshrined the Great Writ in the Constitution to prevent the president from judging the lawfulness of his own detentions. Making proper deductions for the ordinary depravity of human nature, they worried that the president would be tempted to cast political or personal enemies into dungeons or to detain in furtherance of a political agenda absent checking by independent judges. A narrow exception was made "in Cases of Rebellion or Invasion [when] the public Safety may require it," neither of which fits September 11, 2001, or the threat of international terrorism.

Proponents of suspending habeas corpus for Guantanamo detainees proclaim their faith in the inerrancy of the United States military in capturing enemy combatants. They contend that habeas corpus would be superfluous because only vile terrorists apprehended on the battlefield are being detained. In support, they summon former secretary of defense Donald Rumsfeld and Rear Adm. John D. Stufflebeem, deputy director of operations for the Joint Chiefs of Staff. Mr. Rumsfeld characterized the detainees as "the worst of the worst." Rear Adm. Stufflebeem chorused: "They are the bad guys. They are the worst of the worst, and if let out on the street, they will go back to the proclivity of trying to kill Americans and others." Members of Congress have scoffed at habeas corpus premised on their trust in President Bush - like the Queen of Hearts in "Alice in Wonderland" - to target only the guilty for detention.

But based on the government's own enemy combatant status determinations compiled by Combatant Status Review Tribunals (CSRTs), the probability of error is great. Restoring habeas corpus is necessary to avert unjust life sentences and the corresponding creation of poster children for al Qaeda's recruiters.

Seton Hall law professor Mark Denbeaux and lawyer Joshua Denbeaux examined the CSRT records for 517 detainees released in 2005. They revealed that 55 percent of the detainees had not committed a hostile act against the United States or its coalition allies. …