Habeas

The New York Times editors write,

A Key Moment for Justice

The Supreme Court hears arguments today in a case that offers a chance to redress an enormous wrong done by President Bush and Congress when they denied justice to a group of prisoners. It is the latest phase of a battle over whether detainees held in Guantánamo Bay, Cuba, have the right to bring a habeas corpus challenge to their confinement. The narrow legal issues have changed since the court considered the question last year, but the principle remains the same: The detainees have a right to have a court determine whether the government has a valid basis for imprisoning them.

Habeas corpus is an important bulwark against authoritarianism, so vital that the Constitution expressly protects it. Since the Sept. 11 attacks, however, the Bush administration has fought to weaken it both for foreigners held by the United States and for American citizens.

The fight over Guantánamo has been especially heated. The administration has made a variety of arguments for why the detainees have no habeas rights. Notably, it claimed that the naval base at Guantánamo Bay, Cuba, is outside the reach of American law. So far, the Supreme Court has rejected the administration’s arguments. It specifically ruled that the naval base is functionally part of the United States.

The issue today is whether, after the Supreme Court’s rulings, Congress succeeded in stripping the detainees of their habeas rights when it passed the Military Commissions Act. The act authorized military commissions to hear the detainees’ cases and set up a hollowed-out appeals process in the federal courts. At the same time, the act intended to strip the courts of jurisdiction to hear habeas petitions filed by the detainees.

The Supreme Court should rule that the detainees still have the right to habeas review. The Constitution’s framers put strict limits on Congress’s power to tamper with habeas corpus. The suspension clause says it cannot be suspended “unless, when in cases of rebellion or invasion, the public safety may require it.” Since there was neither, Congress had no right to suspend habeas rights, much less take them away permanently.

In rare circumstances, the court has said alternative procedures can substitute for habeas. But it has required them to be almost identical to the protections of habeas. That is far from the case with the shabby regime set up by the Military Commissions Act, which among other things permits the use of secret evidence. Detainees are barred from submitting some of the evidence they need for their defense. At certain points, they are not allowed to be represented by counsel. Most critically, even if a detainee wins, the court is not authorized to free him.

Habeas imposes serious obligations to treat prisoners fairly. The founders anticipated that Congress would be tempted to limit it, which is why they wrote the suspension clause. The Supreme Court should uphold this critical check on power by ruling that Congress may not deprive detainees of their day in court.