Of all the articles and columns I have read in recent days about the injustice of stripping the right of detainees to access to our courts to challenge the legality of their detention, this is my favorite.
It is written by two Denver civil rights lawyers with clients at Guantanamo. When reading it for quotes, I couldn’t pick just a few. Every paragraph should be read.
To get the flavor, start with this:
Four years later, many just want to die. They starve themselves for long periods of time and attempt bloody suicides. The government responds by forcing tubes down their throats. People are trying to kill themselves to get out of custody, because they have no legal recourse. “They won’t let us live, but they won’t let us die,” one of our clients explained.
Who are the lawyers who write these columns and who represent the Guantanamo inmates free of charge?
In representing these prisoners, we have joined a growing volunteer force of outraged attorneys who come from small and large firms across America. The group includes death penalty and amnesty lawyers, plaintiff and defense lawyers, bankruptcy and corporate lawyers. It even includes advocates for retired generals and admirals, all working for free.
Coordinating this effort is the Center for Constitutional Rights in New York. The goal of all involved is to preserve the most basic components of our Constitution, including the right to be charged with a crime as a condition of being held; the right to have those charges speedily determined; the right to hearings before impartial judges; the right to counsel; the right to confront one’s accusers; the right to have access to all case evidence; the right not to have evidence extracted under torture used against you; and the right to be free from torture under the Geneva Conventions.
Last year the Supreme Court decided in Rasul v. Bush that the Guantanamo detainees must be allowed to challenge an executive order declaring them to be enemy combatents.
Almost a year and a half after the Rasul ruling, not a single one of the more than 500 men and boys still held in abysmal conditions of confinement in GuantÃ¡namo has seen the inside of a U.S. district courthouse….The litigation strategy of the government is to prevent hearings on the merits through innumerable delaying challenges aimed at denying these prisoners any access to justice for as long as the president says the “war on terror” is continuing.
It was Sandra Day O’Connor who wrote in 2004:
“a state of war is not a blank check for the president.” The president is not free as commander in chief to “turn our system of checks and balances on its head.” Even Justice Antonin Scalia, in a dissenting message to the president, added that “if civil rights are to be curtailed during wartime, it must be done openly and democratically.”
I wonder how Judge Alito would rule on this issue. It’s something I hope Senators will ask him at his confirmation hearing. As the column’s authors say:
The writ of habeas corpus is supposed to be a rocket vehicle for justice, ensuring that no one is long imprisoned without good cause being shown. Many of these prisoners are entering their fourth year of confinement without any due process.
….The logic of placing these prisoners on the edge of the American consciousness, just south of Florida, is to reassure us by their presence that somewhere, there are shackled men in small cells wearing orange and fitting our stereotypes. Their function is to be far enough away so that no one regularly thinks of the abuses they are suffering but close enough to make us feel safe – like the president and the government are doing something about terrorism. So we leave them there, suffering at the hands of frustrated interrogators and guards, an incomprehensible policy and an administration that seems to ignore the core values of constitutional peoples.
How hypocritical of George Bush to declare after Scooter Libby’s indictment that he is “presumed innocent and entitled to due process” while he advocates denying the same rights to detainees.
Conservatives like to remind us of the Federalist Papers. Here’s what Alexander Hamilton had to say about habeas corpus:
In the Federalist Papers, Alexander Hamilton extolled the writ of habeas corpus, along with the prohibition of ex-post-facto laws, as among the “great securities to liberty and republicanism.”
As the authors of the cited article write, “Justice delayed is justice denied. This must stop now.”
The Denver Post in an editorial agrees the issue should be determined by the Supreme Court and urging the defeat of the Graham Amendment which would overrule the Supreme Court’s decision in Rasul v. Bush and deny Guantanamo detainees access to the courts to challenge the legality of their detention:
The Graham amendment also meddles impermissibly with constitutional checks and balances by forbidding judicial review of executive actions. Unrestrained power is a threat to American concepts of justice. Sen. Jeff Bingaman, D-N.M., plans an attempt to remove the habeas corpus ban this week.We hope the Senate will revisit this sleeper and put it to rest.