It's Time to Restore the Constitution

Document Date: June 26, 2007

By Anthony Romero and David Keene

Today, thousands of people from across the country and the political spectrum are storming Capitol Hill. They are urging Congress to restore our constitutional rights and fundamental American values because last October, the president and Congress enacted the Military Commissions Act – a law which, among other things, eliminated the right of habeas corpus for certain people declared by this or any future president to be an “enemy combatant.” This allows the U.S. government to continue to hold hundreds of people at places like Guantánamo Bay, without ever charging them or giving them their day in court.

The “Great Writ” of habeas corpus is the essential due process right to challenge the legality of one’s detention before a neutral court of law. This centuries-old concept has been an essential instrument to safeguard individual liberty against arbitrary executive power.

Our nation’s founders considered habeas corpus so vital to guaranteeing our basic rights that they specifically enshrined it in the Constitution. In his Federalist Paper No. 84, Alexander Hamilton argued that: “The establishment of the writ of habeas corpus, the prohibition of ex post facto laws… are perhaps greater securities to liberty and republicanism than any [the Constitution] contains.”

Those charged with keeping us safe need to have the power and flexibility to do so. But too much power — broad, unchecked government power — leads to abuses that can damage or destroy the essence of who we are as Americans and the freedoms that make our country uniquely great.

In the aftermath of 9/11, the Bush administration and Congress put many of those fundamental American freedoms at risk. These policies include the National Security Agency’s warrantless wiretapping program, the practice of extraordinary rendition and the overreaching powers included in the Patriot Act. But the elimination of habeas corpus could pose the greatest threat of all.

Habeas corpus represents the core of the American legal system. It ensures that the government’s power to detain individuals is exercised wisely, lawfully and consistently with the Constitution Put simply, the President’s claim that he can detain whomever he wants indefinitely and without charge is an affront to our commitment to due process, the rule of law and ultimately to what this nation represents.

The United States Court of Appeals for the Fourth Circuit, by all accounts among the most conservative circuit courts in the country, recently rejected the assertion that the president can deny U.S. citizens and residents their habeas corpus rights. In the case of Al-Marri v. Wright, Judge Diana Gribbon Motz wrote for the majority:

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause…it would effectively undermine all of the freedoms guaranteed by the Constitution.”

While the government will likely appeal this decision, it represents a major setback for those who are all too willing to sacrifice our freedoms for the semblance of security.

It is easy enough to shrug and dismiss such rights because of the dangers we face, but that would be a monumental mistake. We can defend this nation without surrendering the very principles that make it worthy of our defense. The peoples of the world have always respected this country not because of our military but because of what we represent and it falls on every generation to assure that this will always be the case.

Restoring habeas corpus will provide the only means to ensure that we can separate the innocent from the guilty and be sure that those we hold at Guantánamo and elsewhere are truly our enemies. After more than five years of detention without charge, it is time to convict the guilty and free the innocent.

Our founders went to great lengths to ensure that future generations of Americans would remain safe from the tyranny of an overzealous or autocratic government. But over the past six years, the president has, in pursuing our enemies, disregarded traditional constitutional guarantees as Congress sat idly by. It is up to us — ‘We the People’ — to ensure that the constitutional rights and fundamental American values that make our country unique are restored and protected for generations to come.

In passing the Military Commissions Act, President Bush and Congress rejected a cornerstone of our Constitution and our freedom. Legislation is now pending before Congress that would restore habeas corpus rights – the Restoring the Constitution Act of 2007 and the Habeas Corpus Restoration Act. Our leaders in Congress must support the vital legislation.

Thousands of true patriots are on Capitol Hill today urging our elected representatives to do just that.

Anthony D. Romero is the Executive Director of the American Civil Liberties Union. David Keene is the Chairman of the American Conservative Union and Co-Chair of the Constitution Project’s Liberty & Security Initiative.