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Protesting the suspension of habeas corpus, a demonstrator poses in front of the entrance to the White house.

Lawyers Fight for Habeas Rights

The Military Commissions Act suspends Habeas corpus for foreign citizens accused of hostilities against the U.S.

BY Frida Berrigan

Inside the White House, President George W. Bush sat at a small desk. Surrounded by generals, congressmen and members of his administration, he signed the Military Commissions Act (MCA) into law. “It is a rare occasion when a president can sign a bill he knows will save American lives,” he declared.

Outside the White House, it was raining. More than 100 religious leaders, survivors of torture and concerned citizens gathered to mourn the passing of a cornerstone of American law. Many of the marchers wore soggy orange jumpsuits and black hoods over their faces, representing the more than 400 men who remain imprisoned at Guantánamo. The gap between the Bush administration’s agenda and the concerns of the activists outside could not have been greater.

The MCA establishes new rules for interrogating and trying suspected terrorists. It also suspends habeas corpus for any foreign citizen determined to be an “unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States.” While President Bush called the law, “a way to deliver justice to the terrorists we have captured,” the majority of those held at Guantánamo do not fit under even this exceptionally broad definition of unlawful enemy combatant. A Seton Hall Law School analysis of the Pentagon’s own findings reveals that the U.S. government considers only 8 percent of 507 Guantánamo detainees to be al-Qaeda fighters. Of the remaining detainees, 40 percent have no definitive connection to al-Qaeda or Taliban.

If, to paraphrase Ambrose Bierce, wars teach Americans geography, are they also how we now learn Latin? “Habeas Corpus”–part of a longer English Common Law phrase that means “you shall produce the body”–dates to the Magna Carta. In 1215, that foundational legal document guaranteed suspects the right to challenge their imprisonment. The “writ of habeas corpus” is enshrined in the U.S. Constitution: it “shall not be suspended unless when in cases of rebellion or invasion the public safety may require it.”

Though Attorney General Alberto Gonzalez insists that “the new law should not be understood to ‘suspend’ the writ of habeas corpus for enemy combatants,” there is no other way to interpret it. “This new law is a clear suspension and we are mounting a substantial court challenge,” says Bill Goodman, legal director of the Center for Constitutional Rights (CCR).

Between Congress’ passage of the MCA in September and Bush’s signing on Oct. 17, the CCR continued to file writs of habeas corpus. On Oct. 2, they filed on behalf of 25 men imprisoned at the U.S. military’s Bagram Airbase in Afghanistan. The next day, the group filed for Majid Khan–one of the “ghost detainees” recently transferred to Guantánamo after being held in the Central Intelligence Agency’s secret detention facilities for three-and-a-half years as a “high-value” terrorist suspect. The 26-year-old Pakistani national came to the United States in 1996, and went to high school in suburban Maryland, working at his family’s gas station after classes.

Khan returned to Karachi to get married, but was soon arrested by Pakistani security forces and disappeared in 2003. The next news his family heard of him was on September 6, 2006, when President Bush publicly accused him of delivering money to an al Qaeda operative.

Khan has not been charged with a crime, and was subjected to what the CIA delicately calls “alternative interrogation techniques” while in their custody. His lawyer, Vincent Warren, insists “Majid Khan had nothing to do with 9/11. Any allegations should be made in open court where he has the chance to defend himself against evidence obtained through torture.”

Khan and the hundreds of other prisoners at Guantánamo, Bagram and other detention facilities have filed more than 500 habeas suits individually and in groups to insist that they be granted their day in open court. As the ink dried on the MCA, the Justice Department began dismissing these habeas claims, issuing notice to the U.S. District Court for D.C. and the U.S. Court of Appeals for the D.C. Circuit that they do not have “jurisdiction to hear or consider any claim or cause of action.”

Goodman and the CCR say such moves do effectively suspend the writ of habeas corpus, and point out that the United States is not threatened by “rebellion or invasion,” the only conditions under which the Constitution warrants suspension. Consequently, the CCR is launching a “strong opposition based on the ‘suspension clause’” that Goodman anticipates will go to the Supreme Court.

Meanwhile, lawyers like Goodman and Warren will continue to pursue justice for Guantánamo inmates. One of the first steps is hearings before the D.C. U.S. Court of Appeals on the “significance of the MCA” to the cases the Justice Department maintain are no longer under the courts’ purview. The hearings began Nov. 1 and will continue through the month.

And what about regular people horrified at the trampling of law? Matthew W. Daloisio, a Catholic Worker, emphasizes the need for public education, moral challenge and widespread protest. “As we approach the fifth anniversary of the first war on terrorism prisoners’ arrival at Guantánamo, civil action must intensify,” he says. “January 11, 2007 should be a day of national shame but can also be an opportunity to for citizens to insist on the reintegration of law and justice.”

Frida Berrigan is a senior program associate with the New America Foundation's Arms and Security Initiative and a member of the Campaign for a Nuclear Weapons Free World.

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