Can Habeas Corpus Be Restored?

Democrats and civil libertarians have been understandably livid over the administration’s demolition of the writ of habeas corpus. But remedying the problem isn’t quite as simple as it should be. 

For starters, the Military Commissions Act of 2006 (MCA), signed by President Bush last October, didn’t end habeas in a straightforward, easily reversible way. It ended habeas by inference – first, by denying the writ to ​“unlawful enemy combatants,” and then by defining that term broadly enough that it could, in some cases, include American citizens. Today, an enemy combatant is anybody ​“engaged in hostilities or who has purposefully and materially supported hostilities against the United States.” It was through that legal two-step that the government held, tortured, and denied trial to Jose Padilla, an American citizen arrested in Chicago in 2002 for engaging in terrorist activities. 

At a Tuesday hearing on Capitol Hill, Democrats continued their investigation into the legal consequences of the end of habeas, and how to resurrect it. Rep Jerrold Nadler (D-N.Y.), chairman of the judiciary subcommittee on the Constitution, civil rights and civil liberties, has sponsored two pieces of legislation with that aim: the Habeas Corpus Restoration Act and the Restoring the Constitution Act. If passed, the former would restore the right of federal courts to officially decide the legitimacy of a detainee’s enemy combatant status. The latter would limit that status to ​“those who directly participate in hostilities against the U.S. or who aided in the September 11^th attacks.” It would also forbid the use of evidence gathered by coercion and would make torture and the denial of habeas punishable under the War Crimes Act.

At the hearing, Democrats jousted semantically and legally with Bradford Berenson, a nimble, quick-minded attorney who acted as an associate counsel to President Bush during the Padilla years and who remains a staunch advocate of the current policy. ​“Alien enemy combatants outside of U.S. Territory are not protected by our Constitution,” he said.

One of Nadler’s main concerns, though, is that, by executive fiat, anybody at all can be deemed an enemy combatant, and, as a direct result of the accusation, be deprived of habeas rights. ​“If I’m accused of murder…I get full rights to contest it,” Nadler told Berenson. ​“If I’m accused of being an enemy combatant, I don’t get full rights. How can the characterization of the accusation deprive me of rights?” 

Berenson responded, ​“Because it is a fundamentally different thing to take up this arms against this nation.”

“No one knows you took up arms, someone accused you of taking up arms,” Nadler corrected. ​“I’m not arguing about somebody who was picked up on the battlefield in Afghanistan.” 

Berenson sought then, as he did much of the afternoon, to deflect Nadler’s criticism, telling him, ​“I accept your point that the risk of error in the detentions in this war is higher.”

“I agree with you,” Nadler fired back. ​“That’s not the point. My point is that the procedure for someone picked up in the United States cannot differ simply because he’s accused of being an enemy combatant.”

And so it went. 

Berenson mainly defended the MCA by contending that it only intends to target as enemy combatants people engaged in a violent jihad against the United States. Rep. Steven Cohen (D-Tenn.) asked him if that constituted a religious test for the denial of civil rights. 

Berenson insisted that no such test exists, but admitted that there is a ​“religious component to who they are and what they believe.”

“What if we were to find an agnostic over there,” Cohen asked, ​“but they didn’t like the fact that we had invaded their country, destroyed their culture, destroyed their economy. They didn’t like us as an invading country.” 

“I think there probably are people of that description in Iraq, for example,” Berenson said. ​“I believe our nation’s current policy is to treat them in accordance with the Geneva Conventions.”

Most of the hearing, two hours in length, moved quickly in round after round of intellectual pugilism. After one topic had been exhausted, a new one began in earnest. When detainees are exonerated, for instance, there’s often a problem: no country will repatriate them. Many fear that, in such circumstances, innocent prisoners will remain incarcerated indefinitely. When Nadler pressed Berenson on this, it evoked one of the hearing’s weightiest repartees. 

“The notion of bringing them into the United States strikes me as extremely dangerous,” Berenson cautioned. ​“We’re not always right.”

​“Do we have a right under our laws to keep them in jail forever?” Nadler asked. 

“If the only alternative is to release them into the population of the United States and give them immigration status,” Berenson asked rhetorically. ​“It’s a series of bad choices.”

“That we created,” Nadler noted.

The day’s other ​“star” witness was Lieutenant Commander Charles Swift, the JAG who successfully represented a Yemeni man named Salim Ahmed Hamdan against Donald Rumsfeld in the Supreme Court case that found secret military commissions to be violations of both the Geneva Conventions and the Uniform Code of Military Justice. Hamdan was refused habeas protections until two military judges, in a surprise ruling, threw out his case on a technicality earlier this month. 

Swift took a strong stance against the military’s detainee policy, and particularly its actions at Guantanamo Bay, Cuba, where Hamdan was held for years. 

“In this type of a war,” Swift told the subcommittee, ​“the other side doesn’t have to win a battle. They don’t have to win a skirmish. They don’t have to win a single day. All they have to do is keep fighting. And how do they do that? They recruit. And Guantanamo Bay is the Uncle Sam recruiting poster for Jihad Incorporated.”