No Habeas
Corpus Relief for 12 Million Non-Citizens in US
By Abdus Sattar Ghazali
CA
The
Declaration of Independence says: "We hold
these truths to be self-evident, that all men
are created equal, that they are endowed by their
Creator with certain unalienable rights that among
these are Life, Liberty and the Pursuit of Happiness."
Our founding fathers did not admit of a distinction
among human beings with regard to rights. All
men here mean all human beings. The Declaration
says they are all created equal and endowed with
certain inalienable rights.
However, President George Bush signed a sweeping
terror interrogation and trial law on October
17 which creates two classes of persons inside
the United States, citizens with rights and non-citizens
- i.e. 12 million permanent residents - without
rights.
Although the debate about the new legislation
focused on trials at the US prison facility at
Guantánamo Bay, Cuba, it also takes away
the right to go to court for non-citizens in the
United States if they are declared "unlawful
enemy combatants."
Till October 17, the principle of habeas corpus
meant that anyone thrown into jail had a right
to ask a judge to hear his case. He also had a
right to go free if the government could not show
a legal basis for holding him.
The new law says: "No court, justice or judge
shall have jurisdiction to hear or consider an
application for a writ of habeas corpus filed
by or on behalf of an alien detained by the United
States who has been determined ... to have been
properly detained as an enemy combatant or is
awaiting such determination." In early drafts,
the bill would have cut off habeas corpus only
for unlawful combatants detained "outside
the United States" and at Guantánamo
Bay. However, the final version deleted that phrase.
Now it not only bars the men held at Guantánamo
Bay from challenging their detention in court,
but it closes the courthouse door to non-citizens
(Green Card holders) who are arrested in the US
and held by the military as a possible "unlawful
enemy combatant."
The term "unlawful enemy combatant"
basically includes anyone the president deems
a problem.
The new law also defines this term broadly to
include not just terrorists and fighters, but
also people -- including American citizens --
who have "materially supported hostilities
against the United States." While a citizen
could be arrested as an "enemy combatant,"
he or she could still challenge the government's
action in court.
Article 1, Section 9 of the US Constitution makes
clear that habeas corpus can be "suspended,"
but only during extreme emergencies. It says,
"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."
In the most famous example, President Abraham
Lincoln suspended habeas corpus during the Civil
War. The courts have not always come to the aid
of people who say they are being wrongly detained
by the government. During World War II, the Supreme
Court upheld the government's internment of hundreds
of thousands of Japanese-Americans on the West
Coast.
Bush administration lawyers have said this, too,
is wartime and the attacks of Sept. 11 were akin
to an invasion. And Congress has now endorsed
the president's power to hold "enemy combatants."
More than 500 habeas suits are pending in federal
court, and Justice Department officials said that
they would move swiftly to dismiss them under
the new law. That will inevitably spark a challenge
by civil liberties lawyers, who regard the habeas-stripping
provision as unconstitutional.
Many legal scholars predict the law's repeal of
habeas corpus will be struck down as unconstitutional.
"This is an outright slap at the Supreme
Court, and it is heading for invalidation,"
said Eric M. Freedman, a law professor at Hofstra
University and an expert on habeas corpus.
The American Civil Liberties Union said the new
law is "one of the worst civil liberties
measures ever enacted in American history."
"The president can now, with the approval
of Congress, indefinitely hold people without
charge, take away protections against horrific
abuse, …authorize trials that can sentence
people to death based on testimony literally beaten
out of witnesses, and slam shut the courthouse
door for habeas petitions," said the ACLU
Executive Director Anthony D. Romero.
Calling it a "vital tool" in the administration's
war on terrorism, President George Bush signed
the new legislation which sets new rules for the
CIA to conduct interrogations and allows for the
prosecution of terrorism suspects before military
tribunals.
The Justice Department moved swiftly to enforce
one of the law's most controversial provisions.
Within two hours of the signing ceremony, department
lawyers notified the US Appeals Court in Washington
that the new law eliminated federal court jurisdiction
over dozens of lawsuits filed on behalf of prisoners
held at US military prison at Guantanamo Bay,
Cuba.
The administration has identified about two dozen
suspects it plans to put on trial, including Khalid
Shaikh Mohammed, who is accused of being the mastermind
of the Sept. 11 attacks. Along with 13 other high-profile
suspects, he was recently transferred from CIA
custody to Guantanamo Bay.
The new law was prompted by a Supreme Court ruling,
Hamdan v. Rumsfeld, that invalidated the system
of military commissions President Bush had set
up for trying terrorism suspects, saying they
required Congressional authorization. The court
also required suspects to be treated in accordance
with a provision of the Geneva Conventions, Common
Article 3, which prohibits cruel and inhumane
treatment, including “outrages upon personal
dignity.”
The new legislation says the president can "interpret
the meaning and application" of international
standards for prisoner treatment,” a provision
intended to allow him to authorize aggressive
interrogation methods that might otherwise be
seen as illegal by international courts.
The ruling also prompted President Bush to acknowledge
the existence of the secret CIA program. Last
month, he announced he was moving 14 high-level
terrorism detainees out of CIA custody and to
the detention center at Guantánamo Bay.
He called on Congress to pass a bill setting up
military commissions and establishing new standards
for interrogation so the CIA program could go
forward.
Democratic Senator Russ Feingold of Wisconsin
rightly described the law as a stain on our nation's
history. "It allows the government to seize
individuals on American soil and detain them indefinitely
with no opportunity to challenge their detention
in court," Feingold said adding, "And
the new law would permit an individual to be convicted
on the basis of coerced testimony and even allow
someone convicted under these rules to be put
to death."
(Abdus Sattar Ghazali is the Executive Editor
of the online magazine the American Muslim Perspective:
www.amperspective.com)
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