For nearly five years, I've been fighting attempts by the Bush administration to sweep away the cornerstone of our justice system: habeas corpus, which protects people from being summarily detained without trial. Considered the hallmark of Western liberty, habeas corpus has its origins in the Magna Carta of 1215. The "Great Writ" ended kings' power to kidnap people at will, lock them in dungeons and never bring them to court. Habeas corpus forever marked the line between authority under law and authority that thinks it is the law.
As president of the Center for Constitutional Rights, I've challenged the Bush administration for acting as a law unto itself and blatantly disregarding the Great Writ in its prison camp at Guantánamo Bay, Cuba. Twice, the Supreme Court has insisted that the administration respect habeas corpus; repeatedly, the White House has ignored the court's rulings, going to Congress to get approval for previously unthinkable kinds of detention.
Now, within the next few days, it is conceivable that Congress will abolish the writ of habeas corpus for any non-citizen who is detained outside the country. Stripping away the political nitpicking, linguistic compromises, calculated deal-making and cynical maneuvering of last week's "compromise" in Congress, two questions remain at the center of legislation about the rights of prisoners in Guantánamo.
The first, about torture and the Geneva Conventions, is straightforward: Are we human beings?
The second, about habeas corpus, is, do we believe in the rule of law?
I've spent my life defending victims of torture, and I firmly believe that to be human means recognizing that torture, whether committed by Nazis, Stalinists, Islamic fundamentalists or Americans, is never justified. Inexcusably, the compromise forged by the Bush administration and Republican senators now blurs the line on Article 3 of the Geneva Conventions, which prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" and "outrages upon personal dignity, in particular, humiliating and degrading treatment." It's morally corrupt to attempt to parse exactly what kinds of cruelty, which degree of mutilation, and what depth of degradation are OK: This cannot be an area where "compromise" is acceptable.
But it's also crucial to understand that this legislation places our very belief in the rule of law at risk. The contempt for the law shown by recent developments disturbs me enormously, and shows how far our national values have been hijacked by the extreme right and its partisan agenda.
My office represents and coordinates writs of habeas corpus on behalf of all 460 detainees held at Guantánamo. Almost none of these detainees have been charged with a crime. Many, according to the administration's own claims, have never actively taken hostile action against the United States, but were turned over to the Americans by war lords or bounty hunters. Others are confused, elderly, or simply arrested in error. As Col. Bill Cline, deputy camp commander at Guantánamo, acknowledged, "Some of the prisoners are victims of circumstance, caught up in the wrong place at the wrong time."
But without habeas corpus hearings, there is no way for detainees to know the charges against them, or to refute any evidence that might be wrong. Like our client Maher Arar -- a Canadian sent by the United States to Syria, where he was tortured in a secret prison until the Canadians finally demanded his release -- they are unable to prove their innocence because they have no way to test their detention. And without accountability to a court, as we have seen over and over, abuse of prisoners quickly becomes rampant.
We have been trying to get the Guantánamo prisoners a habeas corpus hearing in federal court for nearly five years. We had a major victory in June 2004 (Rasul v. Bush) when the Supreme Court ruled that courts are open to aliens held outside the United States, and that they have the right to file writs of habeas corpus to test their detentions. Evoking the central importance of habeas corpus to our system of law, the court wrote: "Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land."
Within days of our victory something remarkable occurred. Hundreds of lawyers from big firms and small firms, Democrats and Republicans, Christians, Jews and Muslims, all stepped forward to represent Guantánamo detainees. They did this at great expense and personal sacrifice, traveling to meet their clients at Guantánamo -- and, in the process, discovering what we now know about the torture and abuse there, and putting an end to much of it. These lawyers undertook these cases on principle, believing, as did the Supreme Court, that no person should be imprisoned solely at the behest of the executive, and that all human beings are entitled to the protections of law.
And yet, as of today, not one of our clients has been given the required habeas corpus hearing that would determine whether he was properly detained. The administration stonewalled, stalled and flatly refused to obey the court, fighting hard to retain the privilege of kings.
In 2005, the Bush administration went to Congress and got legislation passed that it hoped would abolish habeas corpus for our clients. It did not work. Once again the Supreme Court stepped in and in June 2006 (Hamdan v. Rumsfeld) ruled that the legislation, called the Detainee Treatment Act, did not apply to our clients.
Refusing to accept the court's verdict, the administration went back to Congress yet again: This week, Republicans in Congress appear ready to pass new bills abolishing habeas corpus. The current legislation does not just apply to those held at Guantánamo but to aliens detained anywhere outside the United States; it is retroactive, so any pending habeas petitions will be knocked out of court.
We believe that this legislation is as unconstitutional as the previous attempts by the administration to abolish habeas corpus, and that, as with previous attempts, it will eventually be overturned by the Supreme Court. But it should not be passed at all: It is unconscionable that illegally detained individuals need to languish in prison for years more without charges or hearings while awaiting judicial remedy.
The remedy is at hand. It is one that has been with us since 1215: the Great Writ. As citizens, we must keep it alive.