Undue Process

THE EVISCERATION OF HABEAS CORPUS

In mid-October, President George W. Bush signed the Military Commissions Act of 2006, which gives him the power to identify unlawful enemy combatants, to order harsh interrogation of them, and to detain them indefinitely. American forces can snatch an Iraqi man from his bed, shackle him, and ship him off to Guantánamo Bay as a suspected terrorist, where he has no right to a speedy trial.

But what if he’s innocent—what if his detention is a mistake caused by the fog of war and the confusion of clashing cultures? The law provides that if a Combatant Status Review Tribunal—or other tribunal established by the president or the secretary of defense—finds that the detainee is an unlawful enemy combatant, that finding is “dispositive.” It seems that he can only appeal it to the United States Court of Appeals for the District of Columbia Circuit. If he manages to, it is not clear what good that will do him. Many legal scholars believe the review process has been so hemmed in by Congress that it has little real independent value. But whatever its value, that process is his one shot. Congress has stripped every court in the United States of the power to hear a petition for a writ of habeas corpus on behalf of an alien deemed to be an unlawful enemy combatant. Once his status as an “unlawful” enemy combatant has been determined, no independent court has jurisdiction to hear any claim “relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement.” He has no right to a timely resolution of his case; as Robert C. Weaver Jr.’s recent article demonstrates, a detainee can languish in jail for years before facing the charges against him (“No Man’s Land,” October 6).

What exactly is the writ of habeas corpus? The writ’s name, which means “you should have the body” in Latin, gives some clue as to its purpose. In sixteenth-century England, a court issuing the writ ordered a sheriff or warden to produce the prisoner in court, and to show good cause why the prisoner should not be set free. As the writ developed, it became clear that its focus was due process, broadly construed: its goal was to ensure that the trial, detention, and punishment of a prisoner were conducted in a fair way that did not conflict with fundamental moral and political rights.

How should Christians think about this? Are the protections that the writ of habeas corpus offers a matter of man-made law that can be wiped away with the stroke of a legislator’s pen, as Congress just did? Or is it a requirement of natural law, based in natural justice? The latter, in my view.

The writ reflects five fundamental moral insights. First, individuals are not mere creatures of the state, to be preserved or discarded as political leaders find convenient. Second, individuals possess a basic right to freedom that is not subject to abrogation at the whim of the government. The government needs to have a good reason for depriving individuals of their liberty. Third, no one should be the judge in his own case: an elemental requirement of procedural justice—of due process—is the giving of reasons for the state’s actions against a person before a disinterested third party. Fourth, justice needs to be timely. It’s cold comfort to tell an innocent man that he’s innocent after he’s spent twenty years incarcerated while “awaiting” trial. Fifth, a detainee hasn’t lost his humanity. Conditions of detention—and interrogation—need to be humane.

There are, of course, objections. The writ of habeas corpus has been suspended in the past; most notably by Abraham Lincoln in the Civil War. It seems to me, however, that this objection can be countered by drawing some distinctions. It’s one thing to suspend the writ for a limited period of time in situations of complete social chaos (such as the Civil War), where the government does not have the resources to maintain the type of legal system that would process habeas applications in an orderly manner. It’s another thing entirely to abolish the writ indefinitely because government officials don’t want the inconvenience—or the embarrassment—of having to justify their actions in the light of day. The “war on terror” is now a chronic condition of our body politic, not an acute one. We need to find a way to incorporate our fundamental values into the ongoing processing of suspects.

A second objection pertains to a detainee’s citizenship status. The Supreme Court has ruled, and Congress has accepted, that American citizens held as unlawful enemy combatants cannot be deprived of access to habeas proceedings in federal court. The new law specifically denies the same right to aliens. Is this legal distinction morally justified? I think the key here is to apply the Golden Rule, which is arguably a requirement of the natural law as well as the gospel.

Suppose that you were in the wrong place at the wrong time, and were rounded up by foreign soldiers with an entirely different language, culture, and religion. Wouldn’t you want the chance to explain yourself? Wouldn’t you want an impartial third party to assess your captors’ explanation of why your detention is justifiable? Then do unto others as you would have them do unto you. Extend the protections of the writ of habeas corpus to aliens as well as American citizens detained in the “war on terror.”

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About the Author

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.