US Diary: are we in danger of losing habeas corpus entirely?

Habeas corpus
It's not just a Latin phrase. It's at the core of who we are - or should be in a nation governed by law, not whim.
By ROBYN BLUMNER/St Petersburg Times

John Yoo, a former Justice Department apparatchik and an engineer of the Bush administration's post-9/11 dismantling of civil liberties, co-wrote a memo in December 2001. It essentially assured Defense Department higher-ups that prisoners held at a camp in Guantanamo Bay, Cuba, would not have access to American courts. The next month, so-called "enemy combatants" started to be transferred to Guantanamo with the idea that the men it held would be out of reach of any semblance of due process.

More than five years later, a disastrous ruling by a federal appellate court has given Yoo exactly what he and his bosses wanted. The U.S. Court of Appeals for the D.C. Circuit has slammed the courthouse door to the hundreds of prisoners in Guantanamo, putting them in permanent legal purgatory.

In a 2-to-1 ruling, the court said that foreign-born prisoners held by the United States in a camp that is 90 miles off Florida's coast are stripped of their rights of habeas corpus. Congress asked for that result when it passed the abominable Military Commissions Act and the court has upheld its constitutionality.

So what if mistakes were made and innocents were imprisoned or if abuse occurred? The courts are closed.

This is a damnable thing for a good country to do.

The writ of habeas corpus is an ancient English legal principle that gives prisoners the right to claim their detention is illegal. The right is a moral imperative, so important that the Constitution's authors included it as one of the few civil liberties in the body of the document.

Article I Section 9 instructs that Congress shall not suspend habeas corpus except "in cases of rebellion or invasion."

As you can see, the Constitution does not say anything about who should enjoy this right. It is not expressly limited to American citizens, as are other rights listed in the Constitution, such as voting. And there are no territorial limits to the reach of habeas corpus articulated in the text.

Yet, in 1950, the U.S. Supreme Court suggested that non-Americans held by the U.S. offshore can be denied those rights.

There is no valid justification for such a gaping loophole. It invites mischief of those inclined to make it. And 50 years later we have an administration so inclined. One with no regard for our centuries-old standards of fairness and decency.

The fact that none of approximately 775 foreign-born prisoners who have come through Guantanamo ever landed on U.S. soil was by design. Guantanamo was to be an American prison without law and the only way to do that was to exploit the loophole. Basic human rights were defeated just by landing planes a little to our south.

To the administration's good fortune, the D.C. Circuit bought its argument that our military base in Guantanamo is not effectively American territory. But in truth, it is. We acquired this 45 square miles that makes up Guantanamo in a 1903 lease agreement, the wording of which grants Cuba "ultimate sovereignty" but gives the United States "complete jurisdiction and control." Then, in 1934, a treaty put the lease into perpetuity. As long as we remained there, the lease couldn't be abrogated.

Since 1962, Cuban President Fidel Castro has refused to acknowledge the legitimacy of the lease, or cash the $4,000 check we send him annually. Castro has called the base "a knife stuck in the heart of Cuba's dignity and sovereignty." Guantanamo is occupied territory.

The U.S. Supreme Court will undoubtedly review the circuit court's ruling. In doing so, it will have to decide whether Guantanamo is a truly an American-created no man's land or if our nation's principles are more indelible.

But to truly understand the depths of hostility the administration has for the habeas right, one need only look at comments by Attorney General Alberto Gonzales. In a recent Senate Judiciary Committee oversight hearing, Gonzales said: "There is no expressed grant of habeas in the Constitution." He was suggesting that habeas corpus is not an individual right, since the words of the Constitution are directed at limiting what Congress can do.

Of course if that were true, then the First Amendment which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ... ," would also lose its status as an individual right.

Gonzales' assertion demonstrates either his withering ignorance of established law or his utter contempt for habeas corpus.

Thomas Jefferson said of habeas corpus that it is part of "the creed of our political faith" and "should we wander from (it) in moments of error or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety."

I only hope that the Supreme Court understands the timeless truth in these words.