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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2963

U.S. Senate Takes Steps to Restore Writ of Habeas Corpus denied by

Daya Gamage – US Bureau Asian Tribune

Washington, D.C. 20 July ( The United States Senate, in a bipartisan approach, has taken steps to restore the Writ of Habeas Corpus rights to those who have been detained as enemy combatants by the Bush administration since the September 11, 2001 attack on the American soil.

The Bush administration’s denial of this right to all those who have been detained in the ‘Global War on Terrorism’ has been internationally and domestically criticized as a violation of basic human rights of a detainee.

When the United States Congress, both the Senate and the House, was controlled by President Bush’s Republican Party, it passed legislation denying this right to the detainees under the United States custody mostly housed in the Guantanamo Bay detention center in Cuba.

The current Democratic Party-controlled Senate, with the support of a group of Republican Senators, has tabled legislation to restore the Writ of Habeas Corpus rights to all ‘enemy combatants’ under the U.S. custody.

The Asian Tribune U.S. Bureau for the benefit of the readers who are familiar with the manner in which Bush administration promotes human rights worldwide, especially its advocacy to developing countries such as Sri Lanka which is battling to maintain a delicate balance of combating terrorism and minimizing human rights violations, presents extracts taken from the U.S. Senate bill now before the legislature to get a glimpse of what the text of the Senate legislation says about the recent developments of human rights record of the United States administration, the importance of restoring a basic right of a detainee and the remedial action it intends taking to improve America’s image worldwide.

The Senate bill outlines the manner in which the Bush administration ignored a basic human right that has been a long tradition in the American governance that has been a significant part of the U.S. Constitution.

Following are extracts from Habeas Corpus Restoration Act of 2007:

“This legislation repeals those provisions of the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA) that eliminated the jurisdiction of any court to hear or consider applications for a writ of habeas corpus filed by aliens who have been determined by the United States to be properly detained as enemy combatants, or are awaiting such determination. The legislation would therefore permit detainees held by the United States Government as enemy combatants, or as potential enemy combatants, to file writs of habeas corpus and other related actions in the United States District Courts, subject to limitations on habeas that pre-dated the DTA. It also allows courts to consider legal challenges to military commissions only as provided by the Uniform Code of Military Justice or by a habeas corpus proceeding.

Brief History of the Great Writ

The writ of habeas corpus protects individuals against unlawful exercises of state power. It provides the means for a person detained by the state to require that the government demonstrate to a neutral judge that there is a factual and legal basis for his or her detention. The writ has roots at least as far back as 16th century England, and beginning with Parliament’s passage of the Habeas Corpus Act of 1679, this protection became known as the "Great Writ."

Habeas corpus has long been a cornerstone of Anglo-Saxon and American legal traditions. At English common law, courts exercised habeas jurisdiction not only within the Crown’s formal territorial limits, but also over other areas over which the Crown exercised sovereign control. The Great Writ was imported into the laws of all 13 American colonies, and it was one of the first subjects to which the first Congress turned its attention. The Judiciary Act of 1789 specifically empowered federal courts to issue writs of habeas corpus "for the purpose of an inquiry into the cause of commitment."

Habeas corpus is also the only common law writ mentioned in the (US) Constitution. Article I, section 9 provides that the ‘‘Writ of Habeas Corpus shall not be suspended, unless when in Cases of rebellion or invasion the public Safety may require it.’’ Thus, the Founders clearly established their intention that habeas corpus serve as a bulwark of individual liberty. Indeed, habeas has only been suspended four times in American history—including twice during the Civil War when the safety of Washington, D.C. was threatened by mobs in Maryland—and the writ has never been suspended absent an active insurrection or invasion.

The right of enemy aliens to petition for habeas relief in U.S. courts is also well-established. While there is no precise historical analogue to the detainees presently held at Guantanamo Bay, United States courts have entertained habeas claims by aliens who were being held as enemy combatants. For example, in Ex Parte Quirin, 317 U.S. 1 (1942), the Supreme Court allowed a habeas challenge brought by a group of German saboteurs held for law of war offenses to go forward.

Throughout American history, the writ has served to guarantee people seized and detained by the government the right to question the grounds for their detention, and has been available to citizens, non-citizens, slaves, and alleged enemies. The writ has served as a critical check on arbitrary and unlawful executive detention as well as, more recently, a legal tool for bringing post-conviction, collateral challenges in criminal cases.

Recent developments in Habeas Corpus Law

Shortly after the September 11, 2001 attacks, Congress passed a joint resolution authorizing the President to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks * * * or harbored such organizations or persons." The United States then conducted a military campaign in Afghanistan against al Qaeda and the Taliban regime that had supported al Qaeda.

In February 2002, following the collapse of the Taliban regime, the White House determined that while Taliban detainees are covered under the Geneva Conventions, Al Qaeda detainees are not.

The White House further declared that none of the detainees qualified for prisoner-of-war (POW) status, deemed all detainees "unlawful enemy combatants," and asserted the right to detain them without trial indefinitely. Around this same time, the U.S. Government began holding non-citizens captured abroad at the U.S. naval base at Guantanamo Bay, Cuba, and declared that certain of these detainees would, at an appropriate time, be tried by military commissions to be convened at Guantanamo Bay.

By mid-2002, the Guantanamo detainees began filing habeas petitions in the United States District Court for the District of Columbia, challenging the conditions of their confinement, access to counsel and, most fundamentally, their status as enemy combatants.

These habeas cases proceeded before several district judges, but the court agreed to deal with all administrative matters before a single judge. During these proceedings, no judge ordered the release of any petitioner, and no judge ordered a change in the conditions of confinement or treatment of any Guantanamo detainee. In June 2004, the U.S. Supreme Court decided the first appeal of a jurisdictional dismissal of a detainee habeas case involving an alien held at Guantanamo Bay. In Rasul v. Bush, 542 U.S. 466 (2004), the Court ruled that the federal habeas statute (28 U.S.C. §2241) conferred on district courts jurisdiction to hear challenges of aliens held at Guantanamo Bay.

The Court based its jurisdictional ruling in part on its finding that the United States exercises plenary and exclusive jurisdiction over Guantanamo Bay. The Court confirmed that, at common law, courts exercised habeas jurisdiction over the claims of aliens detained outside the territorial ambit of the British Empire, and it also observed that the reach of the habeas statute had expanded over the past two centuries. Following Rasul, the Pentagon established administrative hearings,called "Combatant Status Review Tribunals" (CSRTs), to permit detainees to contest their status as "enemy combatants." This led to the filing of additional habeas petitions in the District Court for the District of Columbia.

In the last two years, Congress has twice sought to divest the courts of jurisdiction to hear habeas challenges by detainees. In December 2005, Congress passed the Detainee Treatment Act (DTA) which, among other things, attempted to strip the courts of jurisdiction to hear detainees’ challenges by eliminating the federal courts’ statutory authority over habeas claims by aliens detained at Guantanamo Bay. In Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), however, the Supreme Court rejected the view that the DTA left it without jurisdiction to review a pending habeas challenge to the validity of military commissions established by President Bush to try suspected terrorists.

Following the Court’s decision in Hamdan, and taking only a few weeks from the introduction of the bill to final passage, the 109th Congress in September 2006 passed the Military Commissions Act (MCA), which authorized President Bush to convene military commissions to try the Guantanamo detainees. The MCA also amended the DTA to definitively restrict access to federal courts by all alien enemy combatants, and those awaiting determination whether or not they were enemy combatants, by eliminating pending and future habeas claims other than the limited review of military proceedings permitted under the DTA.

In February 2007, a panel of the United States Court of Appeals for the D.C. Circuit, in Boumediene v. Rumsfeld, 476 F.3d 981, ruled 2–1 that the section of the MCA that deprives courts of jurisdiction over habeas petitions of aliens detained as enemy combatants at Guantanamo Bay does not violate the Suspension Clause of the Constitution, because the Constitution confers no rights on aliens without property or presence in the United States. On April 2, 2007, the Supreme Court declined to review the decision.

Need For Legislation

Habeas corpus allows someone who is imprisoned by the government to challenge his or her detention in court. It is enshrined in the Constitution, and Justice Antonin Scalia has recently referred to it as ‘‘the very core of liberty secured by our Anglo-Saxon system of separated powers.’’ Hamdi v. Rumsfeld, 542 U.S. 507, 554 (2004). The last Congress’s decision to strip habeas rights from any non-citizen held as a possible enemy combatant, including not only Guantanamo detainees, but also any of the at least 12 million lawful permanent residents in this country, and to give the Executive the unilateral authority to detain indefinitely those merely suspected of being ‘‘enemy combatants,’’ was a historic mistake that this legislation will correct.

The legislation is needed for several reasons. First, the DTA and MCA give far too much power to the Executive to detain alleged enemy combatants—potentially forever—with no meaningful check.

In a recent divided Fourth Circuit decision, the majority included language strongly suggesting that legal residents detained in the United States generally would be entitled to constitutional habeas rights, which were not limited by the MCA, and that those held ‘‘awaiting’’ determination cannot be held indefinitely. Al-Marri v. Wright, No. 06-7427. However, the Government in that case argued that the MCA did strip habeas rights from a legal resident detained in the United States, including one indefinitely awaiting a status determination. This Fourth Circuit panel recognized the core importance of habeas rights in our legal and constitutional tradition, but the Executive has not, and there is no guarantee that future courts will— which is why Congress needs to act now.

Specifically, the DTA and MCA permanently eliminated the right of habeas corpus for any non-citizen determined to be an enemy combatant, or even ‘‘awaiting’’ such a determination. A mere accusation by the Executive is therefore sufficient to deny the time-honored right of habeas corpus, and that determination is unreviewable for as long as the government chooses. No administration can be trusted with that kind of power. That is why our Founders included habeas protections in the Constitution and permitted suspension only in certain specified and catastrophic types of declared national emergencies.

Carving out an exception to this long-established legal principle for the sake of expediency was a mistake. Indeed, senior government and military officials have stated that the Executive detained many of the Guantanamo detainees in error. See Tim Golden and Don Van Natta, Jr., ‘‘U.S. Said to Overstate Value of Guantanamo Detainees,’’ New York Times, June 21, 2004. In fact, the government has said that the vast majority will never be tried by a military commission and, without habeas rights, they will have no means to challenge their detention before an independent court. Restoring habeas would prevent the possibility that others in the future who are innocent and wrongly detained could spend their entire lives in prison, without charge, in the custody of the U.S. Government.

Second, it is important to note that the sweep of the MCA goes well beyond the few hundred detainees currently held at Guantanamo Bay. By its terms, the MCA threatens the civil liberties of millions of United States residents, including at least 12 million lawful permanent residents of the United States who work and pay taxes in this country. Under current law, any of these people can be detained forever, without the ability to challenge their detention in federal court, simply on the Executive’s assertion that they are awaiting determination as to their status.

Third, in passing the DTA and MCA, Congress failed to create an adequate substitute for habeas corpus. Absent a congressional finding that there is an on-going ‘‘rebellion’’ or ‘‘invasion,’’ the constitutionality of the MCA’s habeas provision is suspect.

The habeas rights to be restored by this legislation have a sound grounding in historical precedent. As the U.S. Supreme Court recently noted in Rasul, American courts and their British antecedents routinely assumed jurisdiction over habeas claims made by aliens, even if most of those claims were ultimately denied on the merits.

If habeas was available to enemy alien prisoners of war in the two World War II-era cases cited above, who had already benefited from some kind of judicial proceedings or military commissions, then surely habeas must be available to those who seek to challenge executive detention without having had the benefit of any process in accordance with the law of war. Further, the contention by critics of this legislation that the United States has never granted habeas corpus relief to an enemy alien is not only incorrect but it is also irrelevant. The fact that enemy alien habeas petitioners rarely find relief in U.S. courts is evidence that habeas can be relied upon as a necessary, but reasonable, check on executive power, and underscores the feasibility of continuing this historic practice. As in the past, non-citizen detainees suspected of being enemy combatants should at least have the right to go into an independent court to assert that they are being held in error— but, as in the past, a court may only grant habeas relief if the petitioner is able to in fact establish this error.

Finally, the critics’ assertion that habeas proceedings in federal court will somehow lead to the sharing of classified information with terrorists demeans our federal judiciary and ignores the procedures established by this body to insure that classified information is safeguarded in federal proceedings. All federal judges are cleared to view classified information, and they have significant discretion in determining what kinds of evidence to consider, and what witnesses, if any, to allow, in habeas proceedings, which lack many of the protections for defendants present in actual trials. Many detainee habeas claims could therefore be resolved with no recourse to classified documents at all after a determination by a judge that such evidence is not needed to make the baseline showing that the detainee is properly held. Where classified evidence is relevant, courts and judges are well-equipped to deal with such evidence without compromising national security. A distinguished group of former federal judges noted in a letter to Congress last fall that the federal courts have long effectively and efficiently handled habeas complaints and cases involving classified and top secret information, and that ‘‘the habeas statute and rules provide federal judges ample tools for controlling and safeguarding the flow of information in court.’’ Indeed, the United States District Court in Washington, D.C. entertained dozens of detainee habeas petitions involving classified information between 2002 and 2005, using well- established procedures for dealing with such evidence, including a protective order entered into by all parties to the litigation. Federal judges can and will resume this practice of efficiently handling habeas petitions while safeguarding national security interests when habeas rights are restored.

Based on this country’s fundamental, longstanding commitment to habeas review of executive detention, fidelity to our constitutional values, and advancement of our strategic interests, it is critical that the habeas-stripping language in the DTA and MCA be eliminated and that habeas rights for those detained by the U.S.Government be fully restored.” (End Extracts from US Senate Bill)

- Asian Tribune -

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