History Starts Today: The Perils of Habeas-Stripping

JURIST Guest Columnist Alison Nathan of Fordham University School of Law says that the provision in the military commissions bill stripping the federal courts of habeas jurisdiction over detainees threatens a fundamental element of our constitutional heritage ...



Following a claim that former deputy-director of State Richard Armitage told Pakistani officials that if Pakistan did not help the U.S. topple the Taliban in Afghanistan, the U.S. would bomb Pakistan "back to the Stoneage," Armitage denied that he ever used that language. Explaining in a CNN interview that he may have been misinterpreted, Armitage admitted that he had told the Pakistani defense minister that Pakistan had a decision to make as to whether it was "with us fully or not and that it was not a matter of being able to negotiate." Armitage claimed that the Pakistani defense minister responded with a story about the history of Pakistan and Afghan relations; Armitage cut the defense minister off, interjecting that "history starts today." That dramatic statement encapsulates so much of what is dangerously wrong with the Bush administration's response to September 11th.

That the terrorists succeeded in causing wide-scale and horrific civilian death and destruction on September 11th, the likes of which was never before seen on U.S. soil, cannot be overstated. But that by no means suggests, as the administration would have it, that history is irrelevant to our response. To the contrary, history, particularly 200 years of this nation's constitutional history, should be our guide.

Consider the significant alteration to our structure of government that is embodied in the current legislative proposal regarding the treatment of detainees—the so-called habeas-stripping provision. In the midst of the debate between the White House and Republican Senators McCain, Graham, and Warner concerning Article 3 of the Geneva Conventions, the significance of the proposed habeas-stripping language (which remains in the "compromise" legislation agreed upon by the Senate Republicans and the White House) has arguably been underplayed. This is a serious mistake because the change that this provision would bring about to our constitutional heritage is of enormous significance.

Pursuant to the habeas-stripping provision, any non-U.S. citizen who has been or will be swept up by the military, the CIA, or our allies and transferred to a secret black-site or Guantanamo Bay, or rendered to another country where they are held and interrogated at the behest of the U.S. government, may no longer have any recourse to a U.S. court. As a result, the administration will have no obligation to put forward to an independent branch of government even a minimal explanation of the basis for a potentially indefinite detention. Nor will there exist any mechanism to check military or CIA abuses, including torture, of detainees. Whatever rights to humane treatment under the Geneva Conventions that remain following the "compromise" between the White House and the Republican Senators (and there is serious question as to whether this was indeed a compromise or a capitulation to the White House) will be meaningless since the habeas-stripping provision unquestionably ensures that those rights will find no day in court and no remedy.

This change works a significant destruction of our constitutional heritage for at least two reasons. First, the U.S. Constitution establishes as a fundamental structural premise that there will be three independent branches of government that serve as checks and balances upon each other. Removing entirely the independent judiciary from any role in checking the conduct of the Executive and Congress is a substantial alteration to that structural premise. Second, the writ of habeas corpus has, since this country's founding, served as a particularly important guardian of liberty. Throughout our history, when the government has captured and detained individuals, the "Great Writ" has served the basic function of guarding against arbitrary government in the form of unjustified and secret detention. Here is how Alexander Hamilton in Federalist No. 84 (quoting Blackstone) powerfully described the critical importance of the writ of habeas corpus:
To bereave a man of life …without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.
Moreover, these objections to the removal of habeas corpus are not merely academic debating points. We now know with certainty that the U.S. has detained for years innocent men at Guantanamo Bay, such as the five ethnic Uighurs who arrived there after being sold by Pakistani tribesmen for a bounty and the U.S. labeled them enemy combatants with no evidence supporting that designation. It was in part because of the existence of habeas corpus jurisdiction and the pressure of the U.S. Supreme Court's ruling in the Rasul v. Bush case, which held that non-citizens detained at Guantanamo had a right to file habeas petitions, that these men gained their freedom. The habeas-stripping legislation will overrule Rasul v. Bush, making future challenges to wrongful and indefinite detention impossible. We also know that innocent men such as Maher Arar and Khaled El-Masri have been tortured in the process of secret detention and extraordinary rendition either by or at the behest of the U.S. government. The habeas-stripping provision will eliminate any opportunity for the judiciary to ensure that existing and future detentions are not grounded on torture or other abuse.

September 11th will be seen for all time to come as a horrific day that marks substantial and painful loss to America. Let it not also be the day, as the Bush administration would have it, that heralded the loss of the fundamental principles and structure of our Constitutional heritage. Any member of Congress who is considering whether to sign onto the habeas-stripping legislation proposed by the Bush administration must ask themselves whether history, indeed, starts today. The answer must be no.


Alison J. Nathan is a Visiting Assistant Professor at Fordham Law School. She is a former law clerk to US Supreme Court Justice John Paul Stevens and teaches in the areas of civil procedure, habeas and the death penalty.
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