Habeas Corpus - Why Congress Must Act

A great article from Aziz Huq, found on the Thomas Paine website, Habeas Corpus Can't Wait

Delay in the day of reckoning occurred not due to the detainees’ lawyers, but through a series of increasingly reckless maneuvers by the administration and its lawyers to avoid any review of the factual grounds for detention. First the government argued that Guantánamo was not part of the United States, and the president’s sweeping judgment that anyone picked up by the CIA from Bosnia to Pakistan via Thailand must be an “enemy combatant,” and therefore undeserving of any judicial solicitude. Then there were legislative efforts, in the form of the 2005 Detainee Treatment Act and the 2006 Military Commissions Act, to stymie review.

It is important again to emphasize that what the government has sought to avoid is not simple “release.” What the D.C. Circuit held last week was that the Military Commission Act stripped the courts of power even to hear the detainees’ pleas. And at best the Supreme Court will determine that the detainees have a right under the Constitution to be heard. None will necessarily be released. None will even immediately get a day in court. The best case scenario is that the mere prospect of review will push the government into moving forward with releases.

But this is not enough. To understand why, look at the section of Guantánamo called Camp Six. Camp Six is the “more comfortable” facility in which detainees who have been “cleared” are held. As James Cohen’s recent account for the National Law Journal makes clear, detainees in Camp Six are kept in cells with walls, floors and ceilings of solid metal for 22 hours a day, denied natural light or air and have virtually no contact with human beings other than guards. Conditions are worse than any Supermax facility in the United States.

Thus, it is not sufficient to ensure that the detainees have their day in court. Even those who the government concedes to be innocent of any terrorist involvement are still kept in brutalizing and inhumane conditions. A comprehensive solution to the Guantánamo problem requires much more. And, acting alone, the courts have only limited capacity to that end.

So Congress too must act, and there is much that it can do now. The court proceedings are no cause for delay. A comprehensive solution necessarily involves multiple branches of government, and the sooner legislators act, the sooner America can remove the moral stain of Guantánamo from its plate.

I can only concur.

Why Habeas Corpus, the Hamad Project, and the Duke Lacrosse Case Are All Related

In response to my post about Mr. Stimson I received an invitation to view this website: Project Hamad

The invitation came right on the heels of my having seen most of the 60 Minutes report on appalling and flagrant prosecutorial misconduct in the Duke lacrosse case.

As the Stimson incident demonstrates there is among our leadership a disregard for the rule of law and the principles of fairness shocking to all Americans who regard them as the bedrock of our society. It is not ethnicity or religion which makes us Americans, but our abiding belief in the principle that all are created equal and the laws should apply equally to all. It is our inherent suspicion of power which gave us our system of checks and balances, and our belief that all accused persons should have the right to confront their accusers and examine the evidence and test the witnesses which makes our system great.

The Duke lacrosse case shows that in the face of abiding prosecutorial ambition, incompetence, and outright dishonesty even the rich and privileged in this country may find themselves branded as criminals and prosecuted, despite proof of innocence. Does anyone seriously think this was an isolated instance? What would cause an experienced prosecutor to so casually hide exculpatory evidence and manipulate the findings in the case? A pervasive culture of corner-cutting and lax ethical standards, that's what. He did it because where the defendant is not a rich white kid with dedicated and determined parents and aggressive and competent legal representation he gets away with it. The Duke case demonstrates why we have to have standards of evidence and discovery in criminal cases. What would have happened to these boys if their lawyers had not been able to scrutinize the evidence, the reports, and hire their own expert?

Then there is Adel Hamad. He is described as a father of four from Sudan who was working at a hosptial run by an NGO called World Assembly of Muslim Youth (WAMY) in Pakistan, distributing food and clothes, etc. WAMY is alleged to possibly support "terrorist ideals". Mr. Hamad was arrested in his bed in the middle of the night and sent to Gitmo, where after several years of incarceration without charge he was given an administrative review hearing, at which he denied that WAMY is a terrorist organization and asked why he, an employee, would be arrested rather than the CEO or administrators. The review panel voted to keep him, but with a lone dissenter:

The U.S. Army Major, who dissented in his case, concurred: "Even if elements of certain NGOs provide support to terrorist ideals and causes that is insufficient to declare an employee of said NGO an enemy combatant; to do so would lead to unconscionable results: one would have to declare all physicians, nurses and aid workers of any suspect NGO as enemy combatants; the ramifications of such logic would lead to unforeseen and unconscionable results."

Article 20 of the 4th Geneva Convention states: Persons regularly and solely engaged in the operation and administration of civilian hospitals, including the personnel engaged in the search for, removal, and transporting of and caring for wounded and sick civilians, the infirm and maternity cases, shall be respected and protected.

The report goes on to state:

The dissenting [said] "The fallacy of logic that seeks to classify Hamad as an enemy combatant because he many have come in contact with al Qaida member in the course of providing aid to refugees, or teaching at a school, would also provide support that a local merchant who 'came in contact' with al Qaida members could be detained as an enemy combatant."

... Interviews with Dr. Sailani, and Dr Roghman (both WAMY hospital physicians) and Dr Najib (the hospital director and general surgeon) reveal that Hamad never spoke about politics, that there was no anti-American activity at the hospital and that Hamad did not have contacts outside the hospital grounds.

So far, no other evidence aside from a possible tenuous guilt by association has been leveled against Mr. Hamad. There is no evidence that he's ever picked up a weapon, been on a battlefield, or even expressed approval of terrorist activity. However, Mr. Hamad does not have the right to bring a petition for a writ of Habeas Corpus because the Administration, with the connivance of Congress members who appear to fear this ancient curb on arbitrary and capricious detention as much as they fear terrorists, gutted this essential writ and made it unavailable to him.

Do we really want guys like Stimson making the decisions about who should be incarcerated indefinitely? Are we that afraid of our own system of justice that we cannot use it to sort out the good from the bad? Can we not even extend some form of protection against fear-based and fear-mongering prosecutorial excess against the defenseless, whether they be good or bad? If Mr. Hamad is a terrorist then show me, and I'd be happy to lock the door on him permanently, but give the man the right to know what evidence exists against him. It's basic fairness.

Cross posted to Raising Kaine

Rights Denied, an American Detainee in Iraq

The Bush Administration's shameful abnegation of our most basic civil rights is illustrated by this story from the NY Times today: Former U.S. Detainee in Iraq Recalls Torment.

We must ask what "freedom loving" purpose is served by denying legal counsel to an unjustly detained U.S. citizen overseas. How is it that our President claims to champion our system of rights and freedom when the most basic protections are not afforded even to our citizens, let alone to other detainees who do not have the minimal protection offered by U.S. citizenship? Without the protections afforded by our Bill of Rights and the requirement that our government follow its provisions who is safe from governmental incompetence or overreaction? Donald Vance, the detainee in question, was a Navy veteran working as a contractor for a security firm in Iraq who tried to do his patriotic duty and alert our government to his firm's illegal dealings and diverting of arms and munitions. The shocking part is that he and Mr. Ertel, the other American detainee, had alerted the military authorities in Baghdad to their company's criminal activities after Mr. Vance collected substantial information about his company's misdeeds and communicated it to the FBI. Also shocking is the apparent incompetence or sheer apathy of the military authorities who held him in stressful and torturous conditions and apparently did not even check his computer as he requested for his communications with the FBI for weeks after his detention. There is a distinct quality to this of the right hand not knowing, or perhaps not caring, what the left hand was doing.

Given the way this situation was handled I have to ask: how were we as American citizens made safer by suspension of habeas corpus, of the application of the most basic civil rights, of the institution of torture light for detainees? I certainly do not feel any safer.

And let's consider yet another question. Without strict regulation of the circumstances of detention and interrogation of detainees, especially U.S. citizens, what protections do whistleblowers have against a corrupt military investigatory authority? I'm not saying the ones in this situation were corrupt, but really, what protection is there? Who's watching the ones doing the detaining?

Speaking of oversight, Alice Marshall of GOTV has posted the following to her site about the Truman Committee from the Next Hurrah blog: The Next Hurrah: (Harry) Truman Committee