Politics

Court can set things right on a basic right

Since the Bush administration opened its prison camp in Guantanamo Bay, Cuba, more than five years ago, it has contended the prisoners there may be held without charge for the rest of their lives with no right to a court review of their detention.

On Wednesday, the U.S. Supreme Court takes up the latest challenge to this sweeping claim as it hears Boumediene vs. Bush. The case could not be more important. The right of habeas corpus that allows prisoners to challenge the legality of their confinement is so fundamental that the nation's founders put it in the Constitution. It is a judicial check on executive power, and if it can be wiped away for men whom we have held for years on Cuban land the United States has long controlled, the American commitment to due process and the rule of law will be badly compromised.

The court will determine whether the Guantanamo detainees are entitled to habeas corpus rights, and whether the Combatant Status Review Tribunals used to designate Guantanamo prisoners as "enemy combatants" are legitimate alternatives to court review.Will the Roberts court stand for our national values, or will it collaborate with the Bush administration's unraveling of those traditions?

There are two grants of habeas corpus rights in American law, one in statute and the other the Constitution. In 2006, Congress passed the Military Commissions Act, an indefensible measure that repealed the statutory grant of habeas to Guantanamo detainees, stripping the federal courts of jurisdiction to hear any such petitions. The administration says that the measure barred the Guantanamo detainees from court because as foreigners held overseas they do not enjoy the habeas protections of the Constitution.

Lakhidar Boumediene, an Algerian native and his five co-petitioners, are being held in Guantanamo for allegedly plotting against the U.S. Embassy in Sarajevo. They argue they are protected by the Constitution's grant of habeas corpus, in part because Guantanamo is effectively U.S. territory. In a 2004 opinion, a plurality of justices strongly suggested the Constitution extends to Guantanamo since it has been under the control and jurisdiction of the United States for more than a century. If it's under U.S. dominion, the Constitution applies.

The administration's second argument is that the tribunals should substitute for habeas corpus review, something courts have allowed if the alternative process was considered a reasonable facsimile of a court proceeding. But these tribunals don't qualify. In these pro forma hearings, the prisoners don't have lawyers and are often prevented from knowing the basis for their detention or seeing the evidence against them. The government may use testimony elicited through coercion, while the prisoners are routinely refused the means to acquire evidence demonstrating their innocence. In a brief filed by retired military officers, the tribunals are called "little more than a facade."

The Supreme Court initially refused to hear this case but reconsidered on the last day of its last term. Our nation's legacy of granting basic rights even to those we fear has been sullied by the Bush administration and a pliant Congress. The Supreme Court now has an opportunity to reaffirm those basic rights.

[Last modified December 3, 2007, 08:51:02]