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Gitmo, Habeas Corpus and the Long Haul to Fix the MCA

Christopher Anders,
Director of Policy and Government Affairs, Democracy and Technology,
American Civil Liberties Union
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January 18, 2007

There’s a fight brewing in Congress that goes to the core of the Bush Administration’s entire Guantánamo policy. With Guantánamo, top officials in the White House and Justice Department thought they had found “the legal equivalent of a black hole.” They wanted to put nearly a thousand men seized around the world outside the reach of the law. Guantánamo was going to be a place where the only law that applied was the whim of the federal government.

But the courts stepped in and said that due process and the rule of law apply, even in Guantánamo Bay. It could not be lawless, and was not a legal black hole. The most important of these decisions came in June, when the Supreme Court refused to invalidate a detainee’s habeas petition and held that Common Article 3 of the Geneva Conventions protects the detainees.

Unfortunately, then Congress engaged in its own lawlessness. Within a few months of the Supreme Court’s June decision, Congress passed, and President Bush signed, the Military Commissions Act. It is a laundry list of bad ideas. It strips detainees of their habeas due process protections; it allowed detainees to be convicted based on hearsay or evidence beaten out of witnesses; it undermines the Geneva Conventions by watering down the War Crimes Act, and it even says that beating someone to the point of causing cuts and bruises isn’t sufficient injury to be a war crime.

Thanks to Congress, detainees at Guantánamo lost the due process protection that the Supreme Court said that they had. The Military Commissions Act eliminates the habeas corpus protection to have a court decide if a detainee is being held legally or illegally. It is the most basic due process protection in the Constitution–and Congress took it away by a vote of 51-48 in the Senate. Without habeas, there is a much greater chance that detainees being held indefinitely will once again fall outside the protection of the rule of law.

Now a new Congress is gearing up to address this part of the Military Commissions Act. Senate Judiciary Committee Chairman Patrick Leahy has made repeal of the habeas-stripping section a top priority, and has introduced a bill with the highest ranking Republican on his committee, Senator Arlen Specter, to do just that. On the House side, the new House Judiciary Committee Chairman John Conyers is also ready to have Congress reverse course and protect habeas due process protections.

But it is going to be a long haul. There are a lot of issues before the new Congress, and President Bush and some key senators have made clear their willingness to strip habeas protections, even if it means holding detainees for five years with no charge and no hope for a court’s review of their detention.

We’re working with human rights groups, religious groups, and legal organizations across the country—we’re asking people to let their senators and member of Congress know: eliminating habeas threatens the deepest values that make the United States and our Constitution so special.

Over the next couple of months, there will be hearings in the House and Senate on this issue, and we hope to see legislation going to the House and Senate floors—and to the President’s desk—by the summer. It’s going to be a lot of work, but we all want to see a Congress that says that no one is above the law, or beyond the law, even at Guantánamo Bay.

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