Hiding Away Habeas

In case you didn’t notice on Facebook, September 17th was the Constitution’s 220th birthday. Two days later, Senate Republicans narrowly blocked a vote on the Habeas Corpus Restoration Act, thoughtfully giving history teachers everywhere the chance to offer a more modern, nuanced definition of the Bill of Rights: a list of the liberties the government can never violate, unless, of course, Congress says that it can.

On that symbolic occasion, the Senate chose to retain a provision of the Military Commissions Act of 2006 (MCA) that prevents Guantanamo Bay inmates from challenging their detention in court. This de facto suspension of habeas corpus applies to foreign aliens as well as U.S. permanent residents, to those who have committed hostile acts as well as many who have not. Most frighteningly, it applies to detainees against whom military prosecutors lack enough evidence to classify as enemy combatants—but who may nonetheless be kept in Guantanamo limbo indefinitely.

Those who supported the MCA made the mistake of viewing habeas corpus as nothing more than a limit on government power, ignoring how intimately tied it is to the respect for human dignity. To lock someone in a cell as a criminal without giving him a chance to confront his accusers, to see the evidence presented against him, and to plead his case is an indefensible act of cruelty. Most of us would not (and do not) tolerate that treatment even for alleged rapists and murderers.

So why treat these prisoners any differently? Senator Lindsey Graham, a Republican from South Carolina, speaks to all our fears when he calls them “some of the most brutal, vicious people in the world.” But that accusation is as inaccurate as it is manipulative: A study at Seton Hall University found that only eight percent of the Guantanamo detainees were Al Qaeda fighters, and only 30 percent were determined to be Al Qaeda members—and that’s using a definition of membership that is broad enough to include anyone who ever talked to someone from Al Qaeda. The same study also found that the majority of detainees were, at most, found to be “associated with” organizations that themselves have only speculative ties to Al Qaeda. So desperate for evidence, the Government has resorted to identifying enemy combatants based, in part, on their wardrobe—the wearing of Casio watches and “olive drab clothing” has been “cited as proof that the detainees were enemy combatants.”

Furthermore, over 86 percent of the detainees at Guantanamo were taken by Northern Alliance and Pakistani forces at a time when the U.S. military was paying large rewards for the capture of suspected enemies. Unless we want foreign bounty hunters to serve as prosecutor, judge, and jury, legitimate judicial oversight is needed.

And let no one deceive you: Military panels are no substitute for habeas corpus hearings. Officials are pressured to rubber-stamp previously made judgments and accept “garbage” evidence, explains Lt. Col. Stephen E. Abraham, a military attorney who helped run the tribunals. “Nobody stood up and said the emperor’s wearing no clothes,” he writes in an affidavit. “The prevailing attitude was, ‘If they’re in Guantanamo, they’re there for a reason.’”

Why does the Bush Administration work so hard to deny these detainees justice? Perhaps because habeas corpus proceedings could shatter the smokescreen they have built around the use of torture in CIA prisons. A Justice Department memo released last November spelled this out clearly: Terrorism suspects would be denied the right to meet with an attorney for fear that they might describe the methods of interrogation that had been used against them. How clever of our leaders, killing two birds with one stone: using an abrogation of one right to conceal the violation of another.

Our government assures its critics that habeas corpus remains intact for U.S. citizens; the restriction applies only to aliens and U.S. permanent residents. But not only is this an arbitrary and unjust distinction, it offers little real comfort: Detaining a U.S. citizen without the privilege of the writ of habeas corpus may be illegal, but the only way to challenge an illegal detention—to assert that one is a citizen and deserves basic legal rights—is through a habeas corpus petition. The idea, then, that we are immune from government incursions on our legal rights is a frightening Catch-22, one that leaves us entirely dependent on the propriety of military investigators.

In any case, indefinitely holding an individual—citizen or not—in a jail cell away from his family, without even the hope of legal recourse, is no more justifiable simply because he lacks a U.S. passport. Ultimately, the right of habeas corpus should be inviolable for the same reason torture is unthinkable—because we pride ourselves on living in a society that treats all people humanely, even when it might be expedient to do otherwise.



Justin S. Becker ’09 is a molecular and cellular biology concentrator in Winthrop House. Elise Liu ’11 is a Crimson editorial comper in Canaday. Both are members of the Harvard College Democrats.