By Alberto J. Mora, general counsel of the Navy from 2001 to 2006 and Thomas R. Pickering, undersecretary of state for political affairs from 1997 to 2000 and U.S. ambassador to the United Nations from 1989 to 1992 (THE WASHINGTON POST, 04/03/07):
For more than 200 years, the courts have served as the ultimate safeguard for our civil liberties. A critical part of this role has been the judicial branch’s ability to consider writs of habeas corpus, through which people who have been imprisoned can challenge the decision to hold them in government custody. In this way, habeas corpus has provided an important check on executive power. However, because of a provision of the Military Commissions Act passed last fall, this fundamental role of the courts has been seriously reduced.
Habeas corpus — the Great Writ — has been the preeminent safeguard of individual liberty for centuries by providing meaningful judicial review of executive action and ensuring that our government has complied with the Constitution and the laws of the United States. Habeas review has always been most critical in cases of executive detention without charge because it provides prisoners a meaningful opportunity to contest their detention before a neutral decision maker.
In 2004, the Supreme Court held that the protections of habeas corpus extend to detainees at Guantanamo Bay, who may rely on them to challenge the lawfulness of their indefinite detentions. The court noted that at its historical core, “the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.”
But the Military Commissions Act eliminates the federal courts’ ability to hear habeas petitions filed by certain noncitizens detained by the United States at Guantanamo Bay and elsewhere. Late last month the U.S. Court of Appeals for the D.C. Circuit upheld this provision and dismissed the lawsuits filed by many of the Guantanamo detainees.
We fully recognize that our government must have the power to detain suspected foreign terrorists to protect national security. But removing the federal courts’ ability to hear habeas corpus claims does not serve that goal. On the contrary, habeas corpus is crucial to ensure that the government’s power to detain is exercised wisely, lawfully and consistently with American values. That is why we have joined with the Constitution Project’s broad and bipartisan group of judges, former members of Congress, executive branch officials, scholars and others to urge Congress to restore federal court jurisdiction to hear these habeas corpus petitions.
The unconventional nature of the “war on terrorism” makes habeas corpus more, not less, important. Unlike what is found in traditional conflicts, there is no clearly defined enemy, no identifiable battlefield and no foreseeable end to the fighting. The government claims the power to imprison individuals without charge indefinitely, potentially forever. It is essential that there be a meaningful process to ensure that the United States does not mistakenly deprive innocent people of their liberty. Habeas corpus provides that process.
We recognize that the Military Commissions Act still enables the Guantanamo detainees to have hearings before a Combatant Status Review Tribunal, which is charged with determining whether the detainee is in fact an “enemy combatant.” But unlike court hearings, the tribunal hearings rely on secret evidence, deny detainees the chance to obtain and present their own evidence, and allow the government to use evidence obtained by coercive interrogation methods. While these tribunals have some utility, they cannot replace the critical role of habeas corpus.
The government has detained some Guantanamo prisoners for more than five years without giving them a meaningful opportunity to be heard. The United States cannot expect other nations to afford its citizens the basic guarantees provided by habeas corpus unless it provides those guarantees to others.
And in our constitutional system of checks and balances, it is unwise for the legislative branch to limit an established and traditional avenue of judicial review.
Americans should be proud of their commitment to the rule of law and not diminish the protections it provides. Our country’s detention policy has undermined its reputation around the world and has weakened support for the fight against terrorism. Restoring habeas corpus rights would help repair the damage and demonstrate U.S. commitment to a counterterrorism policy that is tough but that also respects individual rights. Congress should restore the habeas corpus rights that were eliminated by the Military Commissions Act, and President Bush should sign that bill into law.