Posted by: sean | November 14, 2005

Slouching away from the rule of law

Last week, the American Senate voted 49 to 42 to strip detained “enemy combattants” in Guantanamo Bay of their right to habeas corpus, which was won in the 2004 Supreme Court case of Rasul v. Bush decision. That decsision found that federal courts had the jurisdiciton to hear the detainees’ cases when suing for habeas corpus. Justice Stevens delivered the Court’s decision and quoted an 1953 opinion by Justice Jackson:

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.

According to the Times, Senator Graham, who sponsored the measure, said that it is necessary, because the detainees’ blizzard of legal claims was tying up the Department of Justice’s resources.

This comes nearly 2 years after the International Committee of the Red Cross (ICRC) published their report on the prisoners being held in Iraq, which stated that:

Certain CF [Coalition Forces] military intelligence officers told the ICRC that in their estimate between 70% and 90% of the persons deprived of their liberty in Iraq had been arrested by mistake.

Of course, prisons in Iraq and Guantanamo Bay are not necessarily the same thing, although the US practice of offering bounties to Northern Alliance forces for bringing them supposed members of the Taliban gives us no real reason to suspect otherwise. This article in the Guardian gives us an idea of what is happening in Guantanamo Bay.

There are about 500 prisoners there, who have been held for almost 4 years without being charged with a crime. Of these, 200 have filed habeas corpus motions. One such person is Adel, represented pro bono by P. Sabin Willett, who writes in today’s Washington Post that detainees deserve court trials:

Adel is innocent. I don’t mean he claims to be. I mean the military says so. It held a secret tribunal and ruled that he is not al Qaeda, not Taliban, not a terrorist. The whole thing was a mistake: The Pentagon paid $5,000 to a bounty hunter, and it got taken.

The military people reached this conclusion, and they wrote it down on a memo, and then they classified the memo and Adel went from the hearing room back to his prison cell. He is a prisoner today, eight months later. And these facts would still be a secret but for one thing: habeas corpus.

Only habeas corpus got Adel a chance to tell a federal judge what had happened. Only habeas corpus revealed that it wasn’t just Adel who was innocent — it was Abu Bakker and Ahmet and Ayoub and Zakerjain and Sadiq — all Guantanamo “terrorists” whom the military has found innocent.

At a the Tehran Conference in 1943, Stalin, Churchill and Roosevelt discussed what to do with the Nazis after the war was over. Stalin, true to form, suggested that 50,000 or maybe even 100,000 nazis should be summarily executed instead of having any sort of a trial. Roosevelt did not seem entirely against the idea, but Churchill left the room in disgust. In the end, there was no mass killing of nazis; the Nuremburg trials were conducted instead. The decision between mass killings/mass imprisonment and the rule of law is what seperates civilized nations from uncivilized ones; the writ of habeas corpus is older than the American constitution and was later enshrined in that document.

It has become apparent that many people being held by the US are completely innoccent. Either the US is a civilized state governed by the rule of law and fair trials as its constitution would lead us to believe, or it decides to forfeit the very ideas of freedom and justice that the “war on terror” purports to be protecting. In the first case, the people being held indefinitely should have the chance to prove their innocence in a court of law. In the second, the US will have bridged much of the distance that seperates police states and democracies.


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