Below The Beltway

Bruce Fein has a great column in today’s Washington Times calling the Bush Administration to task for the harm it’s done to one of the Great Writs of British and American Common Law:

In confronting international terrorism, President George W. Bush and Congress have abandoned the Founding Fathers’ suspicion of unchecked power in favor of the French Revolution’s Jacobins.

Their creed, voiced by Louis de Saint Just, proclaimed, “No liberty for the enemies of liberty.” Accordingly, suspected enemies were routinely imprisoned without trial based on edicts of the French Terror. President Bush has echoed the militant Jacobins: “We must not let foreign enemies use the forums of liberty to destroy liberty itself.” He has similarly detained suspected unlawful enemy combatants at Guantanamo Bay indefinitely on his say-so alone. In so doing, President Bush has suspended the Great Writ of habeas corpus, with the consent of Congress in the Military Commissions Act of 2006, by denying enemy combatant suspects an opportunity to challenge the factual or legal foundations for their detentions before an independent and impartial federal judiciary.

As Fein points out, the Founding Fathers cared so much about the Writ of Habeus Corpus that they included it in the Constitution:

The Founding Fathers enshrined the Great Writ in the Constitution to prevent the president from judging the lawfulness of his own detentions. Making proper deductions for the ordinary depravity of human nature, they worried that the president would be tempted to cast political or personal enemies into dungeons or to detain in furtherance of a political agenda absent checking by independent judges. A narrow exception was made “in Cases of Rebellion or Invasion [when] the public Safety may require it,” neither of which fits September 11, 2001, or the threat of international terrorism.

More importantly, they placed the power to limit the Writ in Article One, which defines the powers of Congress, and, even more importantly, in Article One, Section 9, which places this limit on the authority of Congress to suspend the writ:

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.

Put simply, the President doesn’t have the right to suspend the Writ of Habeus Corpus. When President Lincoln tried to do it in the midst of a Civil War, but without Congressional authorization, the Supreme Court told him that he didn’t have the authority to suspend the writ.

As Fein points out, those who have argued in favor of the detentions without trial at Guantanamo Bay have argued that the individuals being held there are “enemy combatants” and therefore not entitled to protection in a Court. The problem is, that the facts don’t seem to support their argument:

Seton Hall law professor Mark Denbeaux and lawyer Joshua Denbeaux examined the CSRT records for 517 detainees released in 2005. They revealed that 55 percent of the detainees had not committed a hostile act against the United States or its coalition allies. That finding discredits the idea that the detainees are “the worst of the worst.” Moreover, “hostile act” was defined to include the following loosely incriminating circumstances: “The detainee fled, along with others, when the United States forces bombed their camp. The detainee was captured in Pakistan, along with other Uighur fighters.”

Only 8 percent of detainees were characterized by the CSRTs as “fighters for” al Qaeda. Of the remainder, 40 percent had no connection to al Qaeda and 18 percent were unaffiliated with either al Qaeda or Taliban.

In other words, we don’t really know if these people are connected to al Qaeda or the Taliban or not and yet the Bush Administration argues that they should be held without access to independent legal counsel, and without access to a impartial judge to determine if they are, in fact, being held with good cause. Justice demands that they are at least entitled to that.