Sunday, 25 February 2007
"It is not about them. It is about us," Navy Lt. Cmdr. Charles Swift writes in a March 2007 Esquire article explaining why he challenged the military commission system for trying terrorism suspects held at Guantanamo Bay.
And that's why a federal appeals court ruling upholding a hastily enacted
2006 law governing those commissions seems as misguided as the law itself.
The 2006 Military Commissions Act bars Guantanamo Bay detainees (most of whom never have been charged, much less put on trial) from filing habeas corpus petitions in federal court to contest their detention.
And even though that seems fundamentally contrary to the American justice system's principles of fairness and justice (even for the most dangerous offenders), a panel of the U.S. Circuit Court of Appeals in Washington said it isn't.
Lawyers for hundreds of men who have spent years at the Guantanamo Bay prison have repeatedly attempted to secure court hearings that have more of the usual protections afforded criminal defendants. But the Bush administration has resisted, insisting that the detainees aren't entitled to those safeguards and that the executive branch should be able to decide who gets tried, when and how.
After the Supreme Court ruled in 2004 that the detainees could challenge their confinement in federal court, Congress approved a law limiting them to a system of military commissions.
When the court said in 2006 that the commissions violated federal law and international treaties, Congress at Bush's urging revised the procedures.
The new law explicitly stripped detainees of the ability to rely on habeas corpus, the centuries-old mechanism by which prisoners typically ask the government to justify holding them. (The term comes from the Latin for "you have the body.")
The Constitution says Congress cannot suspend habeas corpus unless "in cases of rebellion or invasion the public safety may require it."
The appeals court majority said Congress was within its power to designate the commission system as the exclusive avenue for the detainees to challenge their imprisonment.
But Judge Judith Rogers argued in dissent that Congress acted unconstitutionally because the law doesn't provide an adequate alternative to habeas petitions. Only those detainees chosen by the administration will be tried. Most will only appear before a status review tribunal for a hearing in which they must represent themselves and must prove why they shouldn't be held in custody, even though they might not know precisely why they're being detained.
Any fight against terrorists requires that the United States stop those who threaten our national safety and interests. But justice and decency require that we prove, through fair proceedings, that those in official custody are guilty of an offense or pose a continuing danger.
The Supreme Court almost certainly will have to rule again on whether the military commission system abides by constitutional principles. But Congress created this flawed structure and can fix it.
At least 3 bills to restore the federal courts' habeas jurisdiction in detainee cases have been filed, including 1 co-sponsored by Republican Sen. Arlen Specter of Pennsylvania and Democratic Sen. Patrick Leahy of Vermont, both members of the Senate Judiciary Committee.
Texas Republican Sen. John Cornyn, another Senate Judiciary Committee member, told the Star-Telegram Editorial Board on Wednesday that he supported the restriction of habeas corpus petitions as "a wartime exigency."
"What makes this so disorienting to so many of us is it's such a different kind of war," he said.
But fundamental values are what sustain and guide us, especially when we're disoriented and fearful. That's when we must protect them most.
(source: Editorial, Fort Worth Star-Telegram)