Habeus Corpus, Taliban Style

From today's Wall Street Journal online:

The Supreme Court ruled last Thursday that the writ of habeas corpus should apply to non-American terrorist detainees held at Guantanamo Bay. The Taliban delivered its own commentary on the ruling the very next day, when it busted into a prison in the southern Afghan city of Kandahar and freed 1,150 prisoners, of whom 400 are Taliban members and the other 750 easy potential conscripts. Call it habeas corpus, Taliban-style.

The connection between these events is not merely their timing. The point of keeping enemy combatants at a remote location like Guantanamo is that it offers some assurance that they will not return to the battlefield to kill more Americans – something many have done when given the chance. Yet last week's Boumediene decision makes it all but certain that Gitmo will soon be shutting (or should we say opening) its doors.

The editorial proceeds to note that the natural effect of Boumediene will be that far more detainees in Afghanistan, Iraq and other battlefields in the war on terrorism will be transferred to local prison authorities, in order to avoid the claims of due process rights to which the prisoners will argue they are entitled to habeus corpus while in U.S. military custody. That trend is unlikely to increase human rights protection of the detainees. "Fantasies about 'torture' at Guantanamo notwithstanding, we have yet to meet the person who thinks the rights of the detainees are better assured in their native lands, whether that's Afghanistan, Egypt, China or even France (recently listed by Foreign Policy magazine as one of the five worst places in the world to be a terrorist)."

Update June 16, 2008 at 5:30 p.m.: I want to thank Repack Rider for taking the time to comment on this post. Because I feel that my response should be read by all our readers, I am posting it in the main entry, rather than as a new comment.

Repack Rider's basic argument is that habeas corpus is not an American right, but rather a human right. While that statement would make an effective sound bite, it simply not true, and never has been true. Habeas corpus was a creation of the British common law, and was incorporated into the judicial systems of Britain's former colonies, such as the U.S. A few other nations, such as Spain, Portugal, Poland and the Phillipines, have adopted some form of habeas corpus as well. However, there are many countries that I believe Repack Rider would concur are relatively free societies--Germany, France, Italy, Sweden, Denmark and the Netherlands to name just a few--that do not offer a habeas corpus remedy. Habeas corpus is not mentioned in the Universal Declaration of Human Rights.

What the Universal Declaration of Human Rights does say is " No one shall be subjected to arbitrary arrest, detention or exile." [Article 9] But habeas corpus is not essential to guaranteeing freedom from arbitrary arrest and detention. What is essential is what is advocated in Article 10 of the Universal Declaration of Human Rights: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."

The George W. Bush Administration may be legitimately criticized for its initial policy of indefinitely imprisoning detainees without an opportunity for a fair and impartial hearing. However, in response to earlier U.S. Supreme Court decisions, that problem was fixed by the Military Commissions Act of 2006, which created military tribunals to hear the cases of alleged unlawful enemy combatants. Obviously, if that system is to function properly, those military tribunals would have to be independent and impartial. But that was not the issue in Boumediene. The question in this case is whether alleged unlawful enemy combatants have a right to appear before a civilian, Article III federal court.

Just by way of example, members of the U.S. military who are accused of criminal acts in the course of their military service have no such right--they are tried under the Uniform Code of Military Justice, created by Congress to be applicable to all military members worldwide. What the U.S. Supreme Court has now said it that Congress may not create such a system of justice for persons captured by our armed forces overseas. [Interestingly, the Uniform Code of Military Justice, in Section 802(a)(9), states that the persons subject to its provisions include "prisoners of war in custody of the armed forces." I do not know whether the Boumediene decision discusses that fact.]

In summary, until this decision, neither international law, nor American law, recognized a universally applicable right to habeas corpus.

Repack Rider also states, "It is the duty of every citizen to defend it, because any erosion of our rights hurts us all."

But one cannot erode a right that never previously existed. 400,000 German prisoners of war were kept in the United States during the course of World War II. At the time of their capture, their detention was indefinite, because no one knew how long it would take to defeat Germany, if ever. No one, at least until now, entertained the thought that they had the right to file petitions for habeas corpus hearings.

Imagine if even half of those prisoners, urged by their officers and leaders to do their duty to resist their captors and disrupt their society, had filed petitions of habeas corpus, challenging their right to be detained as prisoners of war. Imagine the chaos and disruption to the war effort that would have resulted, the diversion of manpower to address the hearings, and possibly the summoning home of the GI's who had captured the POWs in order to provide evidence for their continuing imprisonment. Imagine the potential danger if some a court had determined that some of the POWs were entitled to immediate release, because the government had failed to meet its burden of proof (such as, for example, a case where the GI who had captured a German prisoner was now dead or missing in action).

I assume that Repack Rider would admit that Thomas Jefferson was an individual who had an enlightened concern for human rights and liberty. In justifying his signature as President of the treaty for the Louisiana Purchase, when he previously had questioned the power of the federal government under the U.S. Constitution to acquire foreign territory, Jefferson wrote the following:

"[S]trict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means."

If that principle applied to the Louisiana purchase, an action that, if not taken, hardly would have put the United States into mortal danger, how much more should it apply in the case of our ability to detain enemy combatants, when the legal issue is the sufficiency of a fair and impartial trial before a military tribunal, as opposed to a habeas corpus hearing before a civilian Article III federal court.