Erosion of civil liberties continues

Secret prisons and prisoners held without charge or due process are certain signs that a country lives under lawless authoritarianism and not the rule of law. Such behavior was a hallmark of the old Soviet empire, one of the fundamental differences, if you will, between us and them.

It was one of the distinctives in places like Argentina and Brazil during their decades of civil war, of Pinochet’s Chile, of Sukarno’s Indonesia, of Syngman Rhee’s South Korea. It was part of the vicious right -- wing rule in El Salvador and Guatemala before the 1990s peace accords in those countries.

That basic respect for an individual’s liberty -- the right to a day in court as protection against illegal imprisonment -- is enshrined in the Constitution. Article I, Section Nine of that document states: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

Granted, the United States and its legal system, imperfect as it may sometimes be, are a far cry from the countries listed above. Yet a slow drip has been falling at the foundation of our treasured liberties, even as we mouth words such as liberty and freedom as justification for war.

The erosion of the foundation accelerated Feb. 20 when, in a 2-1 ruling, the U.S. Court of Appeals for the District of Columbia, dismissed legal claims brought on behalf of hundreds of prisoners incarcerated at Guantánamo Bay, Cuba, without charge. They seek their day in U.S. court to ask why they are being held and to hear the evidence against them. The Bush administration, whose first try at suspending habeas corpus, (Latin for “bring forth the body”) was overturned by the Supreme Court three years ago, declared the latest ruling a victory.

We hope it is a short-lived victory on the way to another setback in the Supreme Court.

In the 2004 Supreme Court ruling, the justices, by a 6-3 vote, ruled that the right of habeas corpus applied to all people, regardless of location.

The Bush administration then went back to the Republican-controlled Congress and was successful in getting the Military Commissions Act passed, a law that states explicitly that enemy combatants held outside the United States do not have a right to seek redress in U.S. courts.

Lawyers for the detainees have promised to challenge the most recent ruling.

In an online commentary following the recent federal court decision, John W. Whitehead of the Rutherford Institute wrote: “The right of habeas corpus was so important to the fathers of our Constitution because they knew from personal experience what it was like to be labeled enemy combatants, imprisoned indefinitely and not given the opportunity to appear before a neutral judge. Believing that such arbitrary imprisonment is ‘in all ages, the favorite and most formidable instrument of tyranny,’ the founders were all the more determined to protect Americans from such government abuses.”

The question now is: Can America be perceived as a model of justice and the rule of law if such a fundamental right is denied to those who are in our custody simply because they are outside the actual bounds of the United States?

If the federal court’s view is allowed to stand, the United States could conceivably hold anyone, in any of its detention centers (and we’ve learned that secret prisons around the globe are used) for years, indefinitely, if the military deems someone a threat to national security. No charges and no appearance before a judge required.

The contortions necessary to sustain such reasoning had Judge Raymond Randolph writing, in the decision: “Cuba -- not the United States -- has sovereignty over Guantánamo Bay.”

The Bush administration’s position might be easier to understand, while still being unacceptable, if there were greater reason to believe that humans rights are not being grossly violated at Guantánamo and elsewhere, especially in those instances where the administration has approved unspecified “harsh” interrogation measures.

Whitehead noted, for instance, that only 8 percent of the detainees at Guantánamo are characterized as al-Qaeda fighters. “Many of the prisoners insist they have no link to al-Qaeda or other extreme Islamist groups,” a claim he said is supported by documents provided by the U.S. military. Further, he writes, “only 5 percent of the detainees were captured by American forces; according to the BBC, 86 percent of them were actually captured by bounty hunters and handed over in exchange for sizable financial rewards.”

Approximately 395 prisoners are now held at Guantánamo. According to the Pentagon, about 80 will be put on trial before military tribunals and another 85 are scheduled to be released. The rest, some 230, apparently will await the outcome of any appeals.

Two approaches exist to restore civil liberties and to show the world that terrorists have not yet forced us to compromise the rule of law. The first is for Congress, now controlled by Democrats, to undo portions of the Military Commissions Act so that anyone in American custody will be assured a day in court. While Bush might veto the bill, it will send a signal that the people and their representatives have regained their balance. Barring speedy action by the Congress, the Supreme Court should agree to hear the cases as soon as possible rather require the normal process. The foundation is in need of some quick repair.

National Catholic Reporter, March 3, 2007