This past week, the Supreme Court rejected the Bush administration’s astonishing claim that it had the power to detain suspected “enemy combatants” at Guantánamo Bay — potentially for life — without fair proceedings or meaningful access to the federal courts. This moving reaffirmation of the so-called Great Writ of habeas corpus was probably the high court’s most important civil-liberties decision in my lifetime (and I was born in 1942). Habeas, put simply, forces jailers to produce in court legal justification for a prisoner’s incarceration. It is appropriately considered the most fundamental right of free people living under the rule of law. It is also the oldest, having been enshrined in the Magna Carta in 1215, when English barons first challenged the unchecked rule of the Crown.
We can all think of rights that deserve protection, such as privacy, property ownership, reproductive freedom, and marriage equality. But a leaner set of rights exists that functions to put Americans in a position from which they may fight to secure all the others. Free speech is perhaps the most familiar, and the right to vote is another. But the universal human right not to be held incommunicado in some government’s dungeon or gulag is too. Habeas might actually be the most important of all, as free speech and the electoral franchise are cruel jokes when attempted to be exercised from a dark, isolated cell.
Today, the prospect of a trip to the gulag might seem antiquated — but in fact repressive regimes in China, North Korea, and even Egypt have kept it a modern-day reality. The lust for unrestrained power is the exclusive province of neither the political left nor the right. We’d all do well to remember Aleksandr I. Solzhenitsyn’s monumental The Gulag Archipelago: 1918–1956, which depicted the gulags of the Soviet Union, and Jacobo Timerman’s Prisoner Without a Name, Cell Without a Number, which told of his 1977 disappearance into the torture chambers of the fascist Argentine junta. It is hardly beyond imagination that imprisonment without government accountability could come to American shores and affect not only aliens but even Americans.
Such concerns might seem a bit hysterical, but early in the “war on terror,” an American citizen, Jose Padilla, was arrested in Chicago, detained incommunicado in New York, and — in a shell game designed to evade judicial oversight — transferred to a military brig in South Carolina. As I explained in the Phoenix, the Supreme Court declined, on a technicality, to determine whether he was being held properly: his lawyers had filed their lawsuit in the wrong court because, by the time the judiciary considered the case, Padilla had been moved, in the middle of the night, to South Carolina. That case demonstrated that the Bush administration would go to great lengths to avoid judicial review of its treatment of suspected terrorists — even if they were citizens.
Since then, the president, later joined by Congress, ahs waged additional cat-and-mouse games against the Constitution and the judiciary. In 2004, the high court ruled in Rasul v. Bush that, because the United States had effectively exclusive control over Guantánamo, foreigners held there could test the legality of their confinement in US courts via habeas. It also decided, in Hamdi v. Rumsfeld, that, although the government could declare captives “enemy combatants” and detain them for the duration of hostilities, Americans in Guantánamo were entitled to a minimally fair process for challenging such determinations.
Despite the government’s limited win in Hamdi, the Supreme Court reminded the president that his oath to defend the Constitution required him to obey the rule of law — even in an age of terror. Then-justice Sandra Day O’Connor suggested in Hamdi some ways in which the high court was prepared to meet the government half way, if it otherwise played by the rules. It might, for instance, permit hearsay evidence and a limited “presumption in favor of the Government’s evidence” — wholly inadequate procedures by the standards of modern criminal law, but perhaps adequate, it said, for enemy-combatant hearings held in the heat of war, not always at convenient times or locales.
The president arrogantly rejected that olive-branch compromise, and Congress shamefully bought the president’s extreme position, enacting the Detainee Treatment Act (DTA) in 2005 and the Military Commissions Act (MCA) in 2006. Those laws, respectively, effectively eviscerated fair procedures for reviewing the government’s “enemy combatant” designation, and replaced the normal habeas process that allowed federal trial courts to hold judicial-review hearings. Instead, that process was moved to a federal appeals court, which could do no more than determine whether the military had followed the rules set out by the president, not whether the hearings granted basic fairness.
The legislative and executive branches took the position that these laws’ provisions satisfied even the Supreme Court’s watered-down requirements of justice, but just in case they didn’t, the DTA and MCA limited detainees’ access to the courts, to the point where the prisoners were essentially stripped of their writs of habeas corpus and enemy-combatant hearings were sheltered from judicial review. This set up a monumental historic clash in which the Supreme Court was faced with the question of whether it would take on a megalomaniacal White House and a supine Congress in order to rescue that fundamental right.
