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The New York Times
Opinion
Another Test for
Habeas Corpus
EDITORIAL,
nytimes.com on the Web. April 7, 2008
One of the dismal hallmarks of the
Bush administration’s conduct of the war on terror has been its obsession with
avoiding outside scrutiny of its actions, including by the federal courts.
In particular, it has attacked habeas corpus, the guarantee that prisoners can
challenge their confinement before a judge. The administration is doing so
again in an important Supreme Court case concerning the habeas rights of
American citizens held abroad. The justices should rule that the detainees
have a right to review by a United States court.
The two plaintiffs in the case, which was argued in March, are American
civilians in Iraq. Shawqi Ahmad Omar and Mohammad Munaf are being held at
an Army-run detention center in Baghdad, for transfer to the Iraqis on criminal
charges. Mr. Munaf’s conviction on kidnapping charges was overturned, but
he may face further charges. Mr. Omar was captured by the American
military at his home in Baghdad, and was accused of harboring insurgent
fighters. Both men claim to be innocent. Human rights groups warn that
they could face torture if they are transferred to Iraqi custody.
Mr. Omar and Mr. Munaf are asking a federal court to review their confinement.
Just four years ago, the Supreme Court upheld the habeas rights of an American
citizen, Yaser Hamdi, who was captured by the Northern Alliance in Afghanistan
in 2001, and then imprisoned in Navy brigs in the United States.
The Hamdi decision should settle this case. To get around this recent
precedent, the administration claims that the men are beyond the reach of
American courts because the troops holding them are part of a multinational
force authorized by the United Nations. The administration is relying on a
Supreme Court ruling from 1948, Hirota v. MacArthur, that rejected habeas
corpus petitions from Japanese prisoners who were being held in Japan under the
authority of the Allied Supreme Commander there, Gen. Douglas MacArthur.
The Hirota case is inapplicable because it involved Japanese soldiers, not
American citizens. Even if that were not so, the chain of command of the
military in Iraq runs to the president. The administration cannot pretend
the United States military in Iraq is not an American force in order to evade
American law.
The administration is no doubt hoping that the changes in the makeup of the
court since Hamdi was decided will produce a different result. For the
sake of civil liberties and the court’s own integrity, it should not. At
the oral argument, Justice David Souter called the administration’s reasoning “a
little scary.” Extremely scary is more like it.
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