The National Catholic Review
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A chain of decisions by the U.S. Supreme Court has left the Bush administration’s detention program for so-called enemy combatants in shambles. In particular, the decisions put the detention program at Guantánamo Bay, Cuba, in legal limbo. Only last year Congress renewed the far-reaching Military Commissions Act, which allows the executive wide discretion in terrorism cases. But this June 12, in a 5-to-4 decision, the Supreme Court ruled that suspected terrorists held in detention have the right to appeal for habeas corpus, that is, the right to challenge their detention in federal courts. The decision in Boumediene v. Bush undercuts the administration’s claims to extraordinary emergency powers in the war on terror. This decision affirms once again that even a war on terror must be a law-governed activity, where executive action is not beyond appeal.

Confronting terrorism by police methods is frequently derided as ineffective, and military means are promoted as an appropriate tool for combating terrorists. But criminal prosecution against the 1993 World Trade Center bombers proved more successful than the military campaign against Osama bin Laden and Al Qaeda. The ’93 bombers are in prison; bin Laden is still at large. A criminal approach to terrorism, however, comes after the fact. What are authorities to do when they believe a large-scale terrorist act is imminent? Is there a place for preventive detention in the struggle against terrorism? The mass killing threatened by post-9/11 terrorists does require preventive measures, but not measures that deprive suspects of the basic right to challenge their arrest and detention. Such prevention, as practices in other countries like Britain show, should not place suspects beyond legal redress.

The Boumediene and earlier court decisions have forced the reworking of U.S. detention policy. In Hamdi v. Rumsfeld (2004), the Supreme Court ruled that U.S. citizens declared unlawful enemy combatants retained their right to seek habeas corpus. In Hamdan v. Rumsfeld (2006), the court ruled that detainees could challenge the military commissions set up to adjudicate their cases, and it overturned a provision of the 2006 Defense Appropriations Act that attempted to exclude such cases from judicial review. In June 2007 the court agreed to hear the appeals of Guantánamo detainees seeking review of their cases, and with this latest ruling it upheld their right to habeas corpus. Detainees will no longer be lost in a counterterrorist netherworld for life, but will be informed of the charges against them and better able to rebut them in court.

Three tasks lie ahead for the government, the military and the legal profession. First, the courts, the military and the Department of Justice must find ways to adjudicate speedily the pending and potential cases of Guantánamo detainees. Second, the three branches of government must institute policies to implement habeas corpus in cases of alleged terrorism. Third, new ways to prevent terrorist acts must be explored and developed without creating obstacles to legal review or allowing unlimited executive discretion in the name of national security. Any new preventive measures must be reconciled with the protection of personal rights. Furthermore, identification of people as enemy combatants, except on the battlefield, must be abandoned; and indefinite detention without legal supervision or appeal should be proscribed as an instrument of tyranny.

Finally, in the years ahead our country must still come to grips with our national acquiescence to the politics of fear, which has led to the detention and abuse of hundreds of individuals. Among the necessary steps will be restoration of freedom to innocent detainees, accompanied by public apology and some monetary restitution for the years they lost to incarceration. Furthermore, Congress needs to accept responsibility for its complicity with the executive in laws that denied suspects rightful appeal. A national truth commission should be instituted to establish political accountability for the decisions, policies and statutes that placed suspects outside the protection of the law.

Congress might create a bipartisan commission in the style of the Iraq Study Group (members of both parties have criticized the detention system), or, failing Congressional action, a broad association of foundations and human rights groups could organize such an effort. A truth commission should not engage in a witch hunt, but make a serious effort to understand the subversion of the rule of law in the post-9/11 panic and to build a barrier of public opinion and professional responsibility to prevent similar failure in the future. If the nation does not make a collective effort to come to grips with the subversion of liberty in the name of security, we will leave ourselves and generations to come vulnerable to still greater violations and silent coups d’état.

Comments

nautilus | 9/8/2008 - 6:25pm
We had to pay a Navy to defend Hamdan.That is about as much of a joke as your commentary. Kill Americans in War and you get a free trail. You better regain the moral high ground before pontificating. By the way . you should read the Amrtican Constitution.
Ron Plante | 7/30/2008 - 1:27am
This editorial is a classic example of the naive appeasement typical of Jimmy Carter and B.J.Clinton's administrations. Treating illegal combatants as crimminals, crimminals with all the rights of U.S. Citizens for that matter is ludicrious. These people are not signatories to the Geneva Conventions and follow none of their stipulations. They do not wear uniforms, and unlike the US which goes to great pains to avoid collateral damage, these animals go out of their way to kill innocent civilians including women and children. In fact, under the conditions of the Geneva Conventions, which all civilized countries follow, most of these "detainees" could legitimately be executed as spies, as were combatants on both sides of WWII who were captured out of uniform. Another issue which is incorrectly addressed is the fact that they are not being held for crimminal purposes, as a means of incarceration, but are merely being detained as prisoners of war. It is entirely normal for POWs to be detained until the cessation of hostilities. Would you argue that hostilities have ceased? As for the "successful" prosecution of 1993 World Trade Center bombers, I would laugh if the consequences were not so grave. This was effectively an act of war by a foreign power, and treating it as a common crimminal act was merely a symptom of Jamie Gorelick's infamous wall which kept our intelligence services from working together to prevent 9/11. They may have been "successfully" prosecuted, but we lost 3000 innocent civilians to this ignorant handling of an undeclared war. Burying your head in the sand by ridiculing the idea that we are in fact fighting a war on terror will not make it go away. Maybe this is merely misplaced guilt by the Catholic Church for it's major participation in the Crusades. I do not know enough about that period of history, but maybe we had the right idea at that time. Even the Left-leaning New York Times has recognized that while only 10% of the worlds 1.5 Billion Muslims are radicals (a figure half the size of the US population by the way), an additional 80% which are assumed to be moderates not only refuse to speak out against the radicals, but actually sympathize with the radicals. I take that to mean that while these moderate Muslims may not be willing to strap on an IED, they will support those that do with contributions, housing, or at least "moral" support (and I use that term very much tongue-in-cheek.) I forget the author of this quote, but it is very appropos, appeasement is like feeding the alligators so that they eat you last.
PJ | 7/29/2008 - 9:54pm
Our national security is not an intellectual parlor game. It is far more urgent and consequential than your editorial suggests. When next you go to church, notice the people in the pews. Notice the folks in line at the supermarket. Look into the eyes of the person who drives the bus you ride or who waits on you in a restaurant, all those "regular" Americans. The terrorists whose rights you fret so much about want to kill them. I thought that a conscience was supposed to be a pesky sort of thing.
Marie | 7/29/2008 - 9:51pm
The Jesuits spend too much time on State and not enough on Church. They would serve their Church better in churches as pastors helping people deal with with the problems our churches are going through now with shortage of priests. We need better priests who live their calling. They aren't the Church the People are the church as Jesus Christ taught.
KEN | 7/29/2008 - 3:25pm
I'm glad the Jesuits are in charge of saving souls, and not saving the country.
KEN | 7/29/2008 - 3:01pm
I'm glad the Jesuits are in charge of saving souls, and not saving the country.
John McShane | 7/16/2008 - 5:45pm
The constitution establishes guarentees for citizens. There are times when we extend those same guanentees to foreign visitors based upon reciprocity with their home governments. That courtesy is not mandatory under the law. In the case of Guantánamo captives, taken off the arena of battle or combat - persons who are pledged to an international Umma, not to a nation - it seems important to make distinctions about law and precedence and tradition. The Supreme Court did not. The Catholic Church places great emphasis on stated Canon law, precedence and tradition, but that seems to have escaped the attention of the America. What is suggested in this article is that United States civil jurisprudence is universally applicable to world wide combat situations and prisoners of war. Our Laws, tradition and precedence holds that as an invalid conclusion - and in reality, as time will demonstrate, unworkable. I'm uncertain how Canon Law covers this situation.
Robert J. Langworthy | 7/15/2008 - 4:01pm
For the Supreme Court to declare these non uniformed, fanatical terrorists, to be entitled to be tried in civil courts, and to be entitled to the same constitutional rights and protections as United States citizens, is an outrage. Terrorists should be given the same treatment and punishment as captured spies - they should be summarily shot. For you to agree that these jackals should be entitled to the same justice, human care and treatment, as any citizen, legal resident or petty criminal, is more than equally vile. It is more than past time American leaders, the American Left and the Catholic Church in America, wake up and see on which side their bread is buttered. Or is their altimate aim what it appears to be: Destroy the West and it's most successful, freeest and brightest star - America? I, for one, am sick and tired of forever hearing and reading how there is plenty wrong with and in this world of ours, and most of that wrong is America's fault. I am particularly fed up with getting it from Catholic venues and pulpits. The Catholic Church is by no means the only Church in town. Time to get some mordern day "Enlightenment" (and a little old fashioned American spine wouldn't hurt either).
John Braun | 7/15/2008 - 3:25pm
I thought this editorial was very well reasoned. Terrorists may not really present us with dangers not found in the espionage of convention wars, they are nevertheless a very lethal danger. I think the Bush Administration reacted too aggressively, but their reaction is understandable, and legal redress is now being applied.
LEONARD VILLA | 7/15/2008 - 10:14am
This essay reflects a 9/10 mentality with phrases like "politics of fear." We should be afraid in the face of a ruthless enemy who seeks to fly planes into buildings and blow himself up killing innocent civilians. The law-enforcement approach to terrorism was a manifest failure and there is no need to revive it. The notion that terrorists have constitutional rights like U.S. citizens is unfortunately a delusion of Mr. Justice Anthony Kennedy and liberal justices who make up law as they go along. Sanity and common sense is displayed by Justice Scalia in the Boumediene v. Bush dissent.
klbancroft | 7/15/2008 - 8:18am
"The politics of fear" has served as a debilitating force preying on the conscience and psyche of many Americans. And yet we have somehow allowed the rhetoric and legal/political/diplomatic actions that employ it to prevail with little effective challenge. While I've noticed it for what it is from the beginning, I've been at a loss to figure out how to disarm it. I (and seemingly countless others) thought the 2004 election would serve to overwhelm it--it did not. I know I'm not alone in my thinking and feel like we are citizens of Whoville when it comes to having our voices heard. Where's the mega-megaphone? Where's Horton?
John Powers | 7/14/2008 - 10:25pm
We've gone nearly 7 years without a major terrorist attack, and finally the war in Iraq is turning to Peace. So the suggestion is... "Congress might create a bipartisan commission in the style of the Iraq Study Group" Yeah, that should do it, another mind-numbing Congressional Commission is just what we need. JBP
Thomas Cook | 7/14/2008 - 9:14pm
Already prisoners released from Guantanamo have went back to killing American soldiers and that seems to bother you not at all. You had nothing to say about how we keep that from happening. I believe this proves your lack of seriousness about this issue. Further proof of this lack of seriousness is that there is no talk of what sort of methods we could use in the case of areally bad terrorist attack. What you propose would not withstand the pressure of a really bad attack. What you are doing is just posturing. You should be ashamed. Tom Cook
lLetha Chamberlain | 7/14/2008 - 7:05pm
Thank you, I addressed this in poetical format in my book of theological poetry, Wait, Beloved, for Darkness's Gift (see the December 3, 2007 edition of America). We are now beginning to "wake up" from the darkness that had overcome us--let us use it as "gift" to bring us to a fuller understanding of our weaknesses as humanity--and to that of which we are called, divinity in Christ.
Ed Knauf | 7/14/2008 - 5:27pm
I stopped reading the article at "...criminal prosecution against the 1993 World Trade Center bombers proved more successful than the military campaign against Osama bin Laden and Al Qaeda." If so successful, what exactly did we witness on September 11, 2001? Deride the administration's policies if you must, but know that many nations have been attacked by Al Qaeda since that date, but that list does not include the United States.
KC Mulville | 7/14/2008 - 1:10pm
With respect, I disagree. This editorial presents a false choice. The choice is not between infinite, anonymous incarceration versus habeas corpus. That’s a rhetorical straw man. The issue isn’t whether everyone has a right to appeal their detainment, because the military doesn’t deny that. The question is whether we conduct that appeal as a civil matter or a military matter. The oral argument in the Boumediene case (http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-1195.pdf) shows that the military doesn’t deny that detainees have rights. They simply deny that detainees have the right to have their case processed in federal court. It is also disingenuous to argue that the criminal prosecution of the original World Trade Center bombers was effective, because those bombers were in jail, where the perpetrators of 9/11 are free. Quite the contrary, the WTC bombings were followed by attacks on the USS Cole, and eventually 9/11 itself, whereas al-Qaeda has been unable to follow 9/11 with anything in the United States. The one argument is as disingenuous as the other. Finally, it’s disturbing to hear that the editors want to create a “truth commission” that skips over the question of whether there has been a “subversion of law,” and simply jumps to speculation about how it occurred. Whether or not the detainees have rights in federal court is a legitimate legal debate. The fact that some Americans take a different point of view than the editors of this magazine is hardly a warrant to create a “truth commission” to see where these opponents must have gone so horribly wrong. Disagreeing with the editors of America is not, by itself, evidence of insanity or depravity.

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