American Liberty at
the Precipice
EDITORIAL, NYTimes on
the Web, February 22, 2007
In another low moment for American
justice, a federal appeals court ruled on Tuesday that detainees held at the
prison camp at Guantánamo Bay, Cuba, do not have the right to be heard in court.
The ruling relied on a shameful law that President Bush stampeded through
Congress last fall that gives dangerously short shrift to the Constitution.
The right of prisoners to challenge their confinement — habeas corpus — is
enshrined in the Constitution and is central to American liberty. Congress
and the Supreme Court should act quickly and forcefully to undo the grievous
damage that last fall’s law — and this week’s ruling — have done to this basic
freedom.
The Supreme Court ruled last year on the jerry-built system of military
tribunals that the Bush Administration established to try the Guantánamo
detainees, finding it illegal. Mr. Bush responded by driving through
Congress the Military Commissions Act, which presumed to deny the right of
habeas corpus to any noncitizen designated as an “enemy combatant.” This
frightening law raises insurmountable obstacles for prisoners to challenge their
detentions. And it gives the government the power to take away habeas
rights from any noncitizen living in the United States who is unfortunate enough
to be labeled an enemy combatant.
The United States Court of Appeals for the District of Columbia Circuit, which
rejected the detainees’ claims by a vote of 2 to 1, should have permitted the
detainees to be heard in court — and it should have ruled that the law is
unconstitutional.
As Judge Judith Rogers argued in a strong dissent, the Supreme Court has already
rejected the argument that detainees do not have habeas rights because
Guantánamo is located outside the United States. Judge Rogers also rightly
noted that the Constitution limits the circumstances under which Congress can
suspend habeas to “cases of Rebellion or invasion,” which is hardly the
situation today. Moreover, she said, the act’s alternative provisions for
review of cases are constitutionally inadequate. The Supreme Court should
add this case to its docket right away and reverse it before this term ends.
Congress should not wait for the Supreme Court to act. With the Democrats
now in charge, it is in a good position to pass a new law that fixes the
dangerous mess it has made. Senators Patrick Leahy, Democrat of Vermont,
and Arlen Specter, Republican of Pennsylvania, have introduced a bill that would
repeal the provision in the Military Commissions Act that purports to obliterate
the habeas corpus rights of detainees.
The Bush administration’s assault on civil liberties does not end with habeas
corpus. Congress should also move quickly to pass another crucial bill,
introduced by Senator Christopher Dodd, Democrat of Connecticut, that, among
other steps, would once and for all outlaw the use of evidence obtained through
torture.
When the Founding Fathers put habeas corpus in Article I of the Constitution,
they were underscoring the vital importance to a democracy of allowing prisoners
to challenge their confinement in a court of law. Much has changed since
Sept. 11, but the bedrock principles of American freedom must remain.
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