It was a rough week in Washington for the law last week. As president of the Center for Constitutional Rights, I spent much of the week fighting against the passage of the Military Commission Act, which stripped the fundamental right of habeas corpus from noncitizens. Because so much of the debate was focused on prisoners held at Guantánamo, the new bill’s full impact was poorly understood. But our loss in Congress last week has consequences for citizens, as well as for legal permanent residents (green card holders) and noncitizens anywhere–and consequences for the rule of law in this country.
Habeas corpus, which has its origins in the Magna Carta of 1215, is the “Great Writ” protecting people from arbitrary detention, disappearance and indefinite detention without charges. The cornerstone of Western justice, it is essential to the idea that laws–not individuals, be they kings or Presidents–govern a land.
The Center for Constitutional Rights, along with lawyers of all political backgrounds from some of the country’s largest law firms, has filed habeas corpus petitions for nearly 500 detainees at Guantánamo–none of whom have yet had their day in court. Twice in the past five years the Supreme Court has insisted that habeas corpus applies to these prisoners and ruled that the Bush Administration must apply the law. Yet last week Congress buckled in the face of election-year rhetoric about “terrorism” from the White House and passed new legislation denying our clients the right to challenge their detentions, or even to see the evidence against them. While I’m convinced that this law will not stand in court, we are still facing at least a year of challenges before it is declared unconstitutional.
But it is not only our clients who are in jeopardy under this new legislation. Americans need to remember the sweeps and mass detentions after September 11, 2001, when thousands of noncitizens were rounded up and treated as terrorists–which none of them turned out to be. Habeas corpus was their remedy; they could go to court and force the Administration to justify their detentions. Now noncitizens can be rounded up, detained forever and never get their case into a court.
And yet, even more sadly, the tossing aside of habeas corpus was only one of the draconian features of the Military Commission Act.
Another nasty piece of the legislation authorizes the President, on his own authority, to detain anyone, citizen or noncitizen, anywhere in the world, whom he deems to be an “unlawful enemy combatant.” The definition of that term is broadly worded and would allow the President to imprison almost anyone.
If you are unlucky enough to be a noncitizen and the President detains you as an unlawful enemy combatant, you can never test the legality of your detention in court because habeas corpus has been abolished. You are there forever… or until the President changes his mind. If you are lucky enough to be a citizen, your habeas rights will not get you out quickly: The President can now detain any citizen he chooses, without charges, simply by declaring that the prisoner is an enemy combatant.
Moreover, the President is now free to abuse and even torture those detained, using the slippery language of this legislation. Many of the gross abuses we saw at Abu Ghraib and Guantánamo–stripping, hooding, hypothermia, sleep deprivation and possibly mock drowning–will be allowed to continue if the President says so. And those who authorize or carry out torture techniques will have complete immunity from criminal prosecution. Those who authorized the torture of detainees in the past will be granted retroactive immunity. When this was tried in Argentina and Chile during their “dirty wars,” it was called an amnesty, and, in the end, did not work. War crimes cannot be amnestied.