Produce the Body

[question everything]

The Wall Street Journal

Produce the Body
By RICHARD A. EPSTEIN
October 7, 2006; Page A7

(snip)

The average American naturally responds with a blank stare to that Latin mouthful, habeas corpus ad subjiciendum. But the phrase loses all of its obscurity -- and none of its punch -- when expressed in plain English: "Produce the body that it may be subjected to examination."

(snip)

By eliminating habeas review for Guantanamo detainees, the MCA has jettisoned the fundamental right of any prisoner to test the lawfulness of his detention. You may immediately object: Why, if ordinary prisoners of war may be detained for the duration of the conflict without habeas corpus -- as in World War II, the Korean War or the Vietnam War -- should the writ be available to unlawful enemy combatants captured in the war on terror? Because context matters. In conflicts between states, the prisoners are uniformed soldiers. We know they are combatants, we know what counts as the end of the war, and habeas serves no useful role. In a terrorist war, with nonuniformed combatants and chaotic battlefield conditions, wide military sweeps make sense -- but only if we take steps after the heat of battle to allow detainees to challenge their status. Without meaningful judicial review, innocent people could be arbitrarily or erroneously imprisoned, indefinitely.

(snip)

The MCA also sharply limits judicial review. The court sees only the questionable evidence that the government allowed the tribunal to see, which the detainee has no opportunity to confront. And even this limited judicial review kicks in only if the government (1) triggers a CSRT proceeding for the detainee and (2) carries that review process through to a "final decision." The MCA does not require the government to do either. However, unless the government does both, the law allows the government to hold any prisoner -- even if he is not an unlawful enemy combatant -- in custody for the rest of his life, with no due process and no recourse to the courts.

No one deserves that fate. Truth must count. Innocence must matter. A deeply flawed Combatant Status Review Tribunal process and an optional system of limited judicial review sacrifices both. Only habeas corpus review can fill the gap. Happily, the Supreme Court is likely to invalidate this part of the MCA. The Constitution states that the writ of habeas corpus can be suspended only when rebellion or invasion endangers public safety. That's not the case here: A world of difference separates the risk of future terrorist acts from a present invasion on American soil. To strip the federal courts of habeas jurisdiction for individuals captured in the war on terror tramples a fundamental guarantee of liberty that the Constitution provides to citizen and alien alike. It makes a mockery of our efforts to advance the cause of freedom throughout the world, and will be seen, both at home and abroad, as a cynical exercise in hypocrisy.

(snip)


URL for this article:
http://online.wsj.com/article/SB116017531062185381.html (subscription)

Mr. Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago and the Peter and Kirsten Bedford Senior Fellow at Stanford University's Hoover Institution.

[ovidsen]

1. I was surprised this was in the WSJ

I saw it in the print edition yesterday, and was amazed. Not at what Epstein wrote; but that it was in the Wall Street Journal.

Naturally, it can only be read in full online at the WSJ paid site (and what is the online subscription now, $55/year, with a print subscription, more without? I forget...). It seems the WSJ only lets the unwashed masses read the editorial and op-ed stuff when it's slavishly pro-oligopoly, pro-Bush or both.

Thanks for posting this. K&R.

[mcscajun]

2. "Happily, the Supreme Court is likely to invalidate this part of the MCA."

How and when?

First, there needs to be a victim and a complaint in order to file a brief with the SC.

[question everything]

3. Same way that it declared other activities

unconstitutional. I have no doubt that someone will file a complaint.

[mcscajun]

4. My point exactly...but so far, we don't have a complainant.

Only our outrage.

[yurbud]

5. the Bush administration has done for habeas what OJ trial did for sidebar

okay, maybe it's worse. Before Bush, I had looked up habeas corpus, and couldn't figure out why the concept was even need--why wouldn't you know when someone is in jail, don't they have phones there?

Now, it's pretty clear habeas is all the separates us from Pinochet, who GOP strategist Grover Norquist openly admires.