|
Now, some knew their vote was a cynical one. Senate Judiciary Committee Chairman Arlen Specter noted at the time that the Supreme Court is likely to look askance at legislation that denies detainees habeas. (Despite calling the bill ''patently unconstitutional,'' Specter voted for it.) We are not, after all, in a time of rebellion or invasion, the clear constitutional thresholds for suspending habeas.
So a high court with integrity would certainly act to protect the principle.
For many Americans, however, the attitude appears to be this:
Well, the detainees are all terrorists anyway, so who cares what rights they have?
To which the best answer is:
Absent a real trial, how can we be sure they are terrorists?
Or as Jonathan Hafetz, counsel at the Brennan Center for Justice at New York University School of Law, puts it: ''The question is not whether we should detain terrorists, the question is whether we should have a lawful and fair process to determine whether someone actually is a terrorist.
And that is what habeas protects.'' The administration, after all, has already released scores of prisoners, essentially conceding they weren't a threat after all.
Meanwhile, several detailed examinations have suggested that the evidence against scores of others is awfully flimsy.
''We simply swept up hundreds of people who never ought to have been there in the first place,'' says William Schulz, former executive director of Amnesty International and now a fellow at Harvard's Carr Center for Human Rights Policy.
Those who would qualify as prisoners of war from the hostilities between the United States and Afghanistan should have been afforded more rights, while those suspected of terrorism or war crimes should have been put on trial, says Katherine Newell Bierman, counter-terrorism counsel at Human Rights Watch.
''You can detain prisoners of war until the end of hostilities without trying them, but there are a whole lot of other protections and rights that come with that status,'' she says. ''Everyone else is a civilian. You can't just lock them up indefinitely without a fair chance for them to contest the basis of their detention.'' The administration, however, has created a legal black hole by declaring them all ''unlawful enemy combatants'' - a status that doesn't exist under international law - and asserting the right to hold them indefinitely.
Although some will be tried by military commissions - dubious justice, given the rules and procedures the new law establishes for those bodies - many more may not be tried at all, but only have their status reviewed annually by a military panel.
''To the best of their knowledge, they are going to spend the rest of their lives in incarceration, without an opportunity to defend themselves or appeal the decision,'' says Schulz.
By voting to deny detainees the right to mount a vigorous challenge to their detention, Congress has betrayed our precious legal heritage and set a troubling precedent that could someday come back to hurt our own soldiers.
That's why it's vital that the Supreme Court uphold habeas corpus by striking down this law.
|
|
