Habeas Corpus Revived, Will It Survive?
March 30, 2009 by Bob Livingston
In October 2006 President George W. Bush signed into law the Military Commissions Act of 2006, provisions of which trampled all over more than 230 years of American freedoms.
The bill, among other things, stripped the federal courts of jurisdiction to hear habeas corpus petitions from the Guantánamo Bay detainees seeking to challenge their designation as enemy combatants. Habeas corpus is the right defendants have to challenge their imprisonment in civilian courts.
Thankfully the U.S. Supreme Court, in a 5-4 decision last June, threw out provisions of the dreadful legislation, ruling that prisoners there do indeed have a constitutional right to go to federal court to challenge their imprisonment.
You may have thought the provision a good one, because it applied to terrorists captured on the battlefield fighting the U.S. But it wasn’t restricted to foreigners. You can ask American citizen Jose Padilla, the accused “dirty bomb” suspect arrested as he stepped off an airliner at O’Hare International Airport in Chicago in May 2002. He then spent three and half years in a military brig in South Carolina, plus two more in a federal prison before his trial in January 2008.
During his military confinement he was subjected to prolonged isolation and intensive interrogations in conditions a judge called harsh. Still, no evidence of a dirty bomb plot was ever uncovered and Padilla’s conviction was for conspiring to help Islamic jihadist fighters abroad.
In writing for the majority, Justice Anthony Kennedy said, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
The ruling is a good one for freedom-loving Americans, and a repudiation of heavy-handed tactics of the Bush administration and members of congress that voted for the legislation.
But keep your eye on the ball, as the Supreme Court decision left some important questions unanswered. Among them, how much evidence did the government have to show to justify a prisoner’s detention, as well as how classified evidence is to be handled and to what degree of due process are detainees entitled.
And abuses of American freedoms under the guise of protecting the republic in a crisis aren’t unprecedented. During the American Civil War President Abraham Lincoln suspended habeas corpus and arrested newspaper editors and state legislators who opposed the war. He then ignored the Supreme Court’s rulings to restore the right, and many of those arrested didn’t see the light of day until the war was over.
And now we have in office a new president, Barack Obama, who is already showing a proclivity to create a crisis and drum up fear for his own ends, freeze out members of the press he deems too critical, and is pushing harder toward freedom-crushing socialism than even Bush did.