The Fight Over Habeas Corpus

Among the current arguments and accusations being thrown back and forth between the campaigns of Sen. Obama and Sen. McCain is the Supreme Court's recent decision to allow prisoners at Guantanamo to petition a federal court for a writ of habeas corpus. McCain, like the dissenting minority on the Supreme Court, suggests that this will be dangerous to the safety of America. In fact, McCain called the Court's decision "one of the worst decisions in history". Obama, in contrast, noted that the "principle of habeas corpus, that a state can't just hold you for any reason without charging you and without giving you any kind of due process -- that’s the essence of who we are".


First a caveat : Though I am an attorney, I am far from an expert on the issue of habeas corpus (and I know virtually nothing about criminal law). So, if I say something factually incorrect, please let me know.


So, let's consider what the Supreme Court really said. This may be easier by talking about what the Supreme Court did not say. SCOTUS (Supreme Court of the United States) did not say that prisoners at Guantanamo must be set free; that prisoners at Guantanamo can't be held at Guantanamo or at military prisoners; that prisoners must be treated as prisoners of war; or that the US could only hold those prisoners if they were proven guilty beyond reasonable doubt. Nope. What SCOTUS did say is that those prisoners have the right to petition a federal court with a petition for habeas corpus.


So what, really, does that mean? It means that a prisoner can ask a federal court to hold a hearing in which the government has to present evidence as to why the detention of the prisoner is appropriate. All that the government has to do is convince a federal judge that the detention of the prisoner is warranted; the government does not have to prove that the prisoner is "guilty" and certainly does not have to prove guilt beyond a reasonable doubt. Given that some prisoners have been detained at Guantanamo for five years or longer without any independent review of their detention, what is so wrong with having a judge examine the evidence?


Sen. McCain and others on the right argue that allowing these prisoners to petition a court to consider whether they are rightfully detained will be dangerous for our nation. The implied threat here is that the courts will free these prisoners and send them back to whence they came so that they can do us more harm. But, if the prisoner was lawfully detained, then the court will have no reason to free the prisoner. So what is the real worry? Could it be that we have imprisoned people who did nothing wrong and who aren't a threat to America (or at least weren't a threat to us until we made them our enemies by imprisoning them)?


The real problem is that Congress has allowed President Bush to create a system whereby anybody that the President or military says is an "enemy combatant" can be locked up and the key thrown away, without a real trial (don't forget that the President tried to use this justification to lock up American citizens, too). Either these prisoners are prisoners of war (in which event certain requirements must be met under the Geneva Convention) or they are something else. But under our system of justice and jurisprudence, we don't leave it up to the President to say who is good and who is bad, who is innocent and who is guilty, and lock up, forever, those that the President says are a danger to us.


The first President Bush said that Manuel Noriega, the President of Panama was bad. So we had a little war, arrested Noriega, and put him on trial. When the World Trade Center was bombed in 1993, we found those responsible, and put them on trial. Timothy McVeigh was tried and executed; he wasn't executed without trial. In our other wars, when we've taken prisoners and we've treated them as prisoners of war. Only in our "war on terror" have we decided neither to try prisoners nor treat them as POWs. Rather, we've allowed the President to simply decide who is bad and lock them up. That is what medieval kings used to do to their rivals and that is why the concept of habeas corpus developed in old English law.


So, we have two positions and concerns to weigh: On one side, we have the fear that a judge might decide that a terrorist was illegally detained and free that terrorist. As I suggested above, I consider that highly unlikely. If the person is really worthy of being detained as a threat to America, it should not be difficult for the government to come forward with some evidence supporting the detention. (And, if the government can't produce a reason to detain the person other than "we think he might be a bad guy" shouldn't the person be allowed to go free?)


On the other side we have the very core fabric of our constitutional republic: People are not imprisoned merely on the say so of the President and Congress cannot abdicate its own authority (or that of the courts) to grant such power to the President. Justice Kennedy's majority opinion makes the point this way:

Security subsists, too, in fidelity to freedom's first principles. Chief among
these are freedom from arbitrary and unlawful restraint and the personal liberty
that is secured by adherence to separation of powers. . . .

The laws and Constitution are designed to survive, and remain in force, in
extraordinary times. Liberty and security can be reconciled; and in our system
they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that
framework, a part of that law.

I am less worried about the potential threat to our nation from granting a hearing given to a person suspected of being a terrorist than I am to the threat to our nation from allowing basic principles of liberty and freedom to be usurped by a President.


I generally support the idea of a war on terrorism. But the Bush administration has waged that war so poorly, with so many bad ideas and disregard for what is right and just, that our standing in the world has suffered. Shortly after 9/11, the world was on our side. Sadly, the Bush administration has squandered that good will and given more people reasons to hate us. What happened to thinking about America as the shining city on the hill, lighting the way to freedom? Now, people around the world look at us as little more than a thug with the biggest guns around. How are we different from others who imprison without trial? Doesn't offering our enemies that which they would not give us make us stronger?


Thus, I side with Sen. Obama in his support of the recent Supreme Court decision. Perhaps more importantly, I side with Sen. Obama in his recent criticism of Sen. McCain and President Bush's approach to the war on terror. Think of it this way: Bush policy (more or less championed by Sen. McCain) has left Osama bin Ladin at large, allowed the Taliban to remain a viable fighting force, and permitted al-Quaeda to remain a threat, while thousands of American soldiers have died in Iraq (not to mention the tens of thousands who have been wounded) as anti-American sentiment has increased throughout much of the world.


Lately, I've been trying to make a point to my kids that doing something the easy or expedient way is not necessarily the right way. It seems to me that a nation that prides itself on being an example of what is good and right in humanity should always be willing to sacrifice expediency for the sake of freedom and justice. And, when we permit justice to prevail, I think that we will find that we are much, much safer than if we permit our leaders to act in a way that is no better than the leaders of those totalitarian regimes or absolute monarchies that continue to operate in a way reminiscent of those countries from which early Americans fled to form this experiment in democracy and freedom.