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Tom Head

The Habeas Corpus Debate

By July 16, 2007

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Background: The Sixth Amendment

"[T]he biggest challenge is finding a statutory basis for holding prisoners who should never be released and who may or may not be able to be put on trial."
-- Robert Gates, U.S. Secretary of Defense

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it."
-- U.S. Constitution, Article I, Section 9

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
-- The Sixth Amendment to the U.S. Constitution

What's wrong with this picture?

In an editorial published yesterday, the New York Times called on Congress to pass the Leahy-Specter bill, S.A. 2022, which would end the Bush administration's policy of detaining accused terrorists without trial. The way this has been described in the press is that the bill would "shut down Guantanamo Bay," but this is not at all correct; Guantanamo Bay Naval Base and its associated prisons would remain operational. There would just be far fewer people imprisoned there, and new prisoners would need to be processed in a manner consistent with U.S. criminal justice standards.

Let's be blunt: It isn't really fashionable to free suspected terrorists right now. There's a new Osama bin Laden remix video making the rounds, intelligence experts suspect a new terrorist attack could be imminent, and we're talking about releasing people who, in the eyes of the Bush administration, may be associated with terrorist organizations. On the face of it, this is really, really bad timing.

But the truth of the matter is that the terrorist threat is never going away. The "war on terror" is no more winnable than the "war on crime." The more our military technology advances, the more plausible it will be for individuals or small groups to get their hands on that technology and kill us with it. We can address these dangers if we adequately fund foreign intelligence agencies, halt or slow down the proliferation of weapons of mass destruction, destroy organized global terrorist networks, put pressure on foreign governments to distance themselves from terrorist groups, adapt security standards to take into account the possibility of terrorist attacks, and prosecute known terrorists to the fullest extent of the law.

What else can we do? Well, I suppose we can legalize torture, ban speech that criticizes the government, and give the executive branch the power to arrest and permanently detain non-citizens at will. But history suggests that these kinds of initiatives tend to create more problems than they solve, and in any case there were already plenty of European governments that operated according to these rules before our little democracy came along. A little over two centuries ago, a small group of cranky British subjects decided they'd rather try things differently. If we want to put an end to their experiment now, it's certainly within our power to do that, but it isn't something we should do lightly. We would be sending a message to the rest of the world that these human rights standards don't work. And the theocratic monarchs of the Middle East would walk up to our president, pat him on the shoulder, and say "Yes, we've been trying to tell you this for years..." No doubt this was what European monarchs told President John Adams after he signed the Alien and Sedition Acts, or President Woodrow Wilson after he authorized the Palmer Raids. "Nice idea, this whole American experiment thing, but as you can see the real world requires that governments rule with a firmer hand." Of course our government corrected itself, and now those European monarchies are liberal democracies, too.

It is an unsafe and inconvenient time to free the Guantanamo detainees, but there will never be a safe or convenient time. The question now before our leaders is whether they will do the safe and convenient thing, or live up to their own international human rights standards. We should contact them and make our views known.

But most likely they will do the safe and convenient thing. The New York Times editorial states that "[t]he Senate and then the House must pass the bill with veto-proof majorities," a scenario so improbable that endorsing it with a strident word like "must" sounds almost comical. Yes, it will pass, and yes, Bush will veto the amended defense appropriations bill. But what then? Congress caved on the Iraq War; having done that, are they really going to turn around and block defense appropriations over Guantanamo Bay? Barring that unlikely two-thirds majority scenario, or an even less likely change of heart on the part of President Bush, this amendment will be an interesting bit of political theater and little else.

And that's a shame. Maybe the Bush administration will ultimately release the detainees of its own accord. Maybe the new administration taking office in 2009 will release the detainees. But sooner or later, we will need to address this issue of executive power head on and decide what kind of rules we're going to live under in the post-terrorism age. The political pundits will say that this is the fundamental question of the 2008 election, but this issue is bigger than one election. It is an honest conversation that we need to have as citizens, independent of the partisan spin cycle.

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