Habeas That Corpus

Just a few years ago, the United States could hold its head high for the freedoms enjoyed by those residing within its borders as well as its energy, leadership, and openness and compassion. Today we are fast becoming a closed society, suspicious not only of “outsiders” but of many within our borders who are in some way “not like us.” The lists of our freedoms have turned into lists of our enemies, giving them an unmerited significance that in turn diminishes the country’s international standing. Persuasion has been replaced by coercion, honor sacrificed to a corrupted “duty,” and morality to expediency.

The change became very clear approximately 66 months ago and not quite a month after September 11, 2001, when the Bush administration launched its retaliatory strike in Afghanistan on the Taliban regime and Osama bin Laden’s al-Qaeda.

Simultaneously, it launched another strike, this one aimed at the array of civil and political rights guaranteed in the Constitution to citizens and others who are in the United States.

Legislative Attack on Freedom

Playing on the fears generated by 9/11, the administration proposed and Congress passed legislation expanding government intrusion and restricting previously sacrosanct freedoms and constitutional guarantees. When the federal courts, including the Supreme Court, struck down some provisions of these new laws and some administrative decisions of the administration that violated human rights such as curtailing habeas corpus, the White House seemed stunned that the courts would “interfere.” A compliant Congress then enacted additional legislation (the Military Commissions Act) to try to restrict judicial review, only to have the electorate issue its “opinion” last November. The fact that control of both Houses of Congress was about to change must have sent the Bush administration into overdrive to work around both the legal and the electoral rebuffs.

The New Year arrived with myriad machinations, redefinitions and procedural about-faces by the administration. What doesn’t seem to have changed is who the White House regards as “the enemy.” Aside from bin Laden and al-Qaeda, the enemy also seems to include anyone who advocates redeploying U.S. troops from Iraq, cutting war funding other than for protective equipment for U.S. troops, or opposes the “war against terror.” And the enemy also includes those being held in Guantanamo Bay, Cuba and in secret prisons as “unlawful enemy combatants,” some approaching five years in detention.

Since the White House cannot jail everyone who voted for Democrats and third-party candidates last November, and since citizens and legal residents still may criticize the conduct of the wars and other policies, the only classes of people who can be “made to pay” are those fighting day in and day out in Iraq and Afghanistan or those in secret detainee facilities in Afghanistan and elsewhere and Guantanamo. These latter are the most vulnerable to injustice at the hands of the administration.

Bush could make the top brass pay for not wrapping up the Iraq War already, but that would implicate him as commander-in-chief for appointing leaders who didn’t understand the nature of the wars they have been waging – evident from the fact that neither war is “going well.” In Afghanistan, the Taliban and al-Qaeda who were driven from power in 2001 are today striking back at the NATO-led (read U.S.-directed) coalition and indigenous security personnel. Only the fact that foreign troops in Afghanistan number 31,000 keeps the fatality totals well below those in Iraq where foreign troops total some 162,000-165,000 plus an estimated 100,000 foreign contractors.

But, as lethal as the fighting is in Afghanistan and Iraq, the administration’s renewed assault on human rights and civil liberties threatens to wreak such damage that some constitutional protections may never be fully recovered.

Wiretapping Abroad

Last month, the Justice Department sent proposed legislation to Congress that would permit secret monitoring of telephone calls, emails, and other electronic communications of non-citizens and non-legal residents who are thought to “possess significant foreign intelligence information.” The proposal would also permit monitoring of communications of individuals or groups that are thought to have a connection to weapons of mass destruction.

Current law requires that the target of U.S. surveillance be an agent of a foreign government or have some connection with terrorism before the secret Foreign Intelligence Surveillance Act (FISA) court can authorize spying. Outsiders who have knowledge of the administration’s proposal note that it would remove the current requirement to demonstrate this connection – as lax as this standard is – and replace it with a mere assertion by government agents that the named group or individual may have such a connection.

Other proposed changes would allow any U.S. government intelligence agency to intercept electronic communications routed through American carriers even if the calls originate and terminate outside the United States – eliminating the current requirement that one of the participants be inside the U.S. The measure would also move challenges to the conduct of foreign surveillance from the regular federal court system to the secret FISA courts and extend the time limit from two to seven days that “emergency” surveillance can be conducted before applying to the FISA court for its approval.

And, what perhaps is the most direct assault on civil liberties in this round is something the intelligence services have been trying to ram through Congress for years. Under the latest Bush proposal, the government could retain information unintentionally collected during an operation focusing on entirely unrelated objectives. The only caveat is that the retained information has to contain “significant foreign intelligence.”

As troubling as these trends are, the worst part of this Bush policy is the renewed two-pronged attack on what is the oldest human right in the Western world: habeas corpus. The Justice Department and the military officers running the so-called “trials” at Guantanamo have attempted all along to restrict the ability of “unlawful enemy combatants” to challenge this Bush-created category and the administration’s efforts to curtail their rights to legal representation. Prosecutors thought if they could get a quick conviction under the Military Commissions Act of 2006, this might demonstrate that the special tribunal system met minimum standards set by the Supreme Court.

Hicks and Khadr

Their choice as the test case was the “Australian Taliban” David Hicks, originally charged with providing material aid to al-Qaeda, attempted murder, and conspiracy, a man described as among “the worst of the worst” by Australian Prime Minister John Howard, one of Bush’s staunchest supporters in the “war on terror.” But Howard, under growing political pressure at home, received a commitment from the Bush administration that Hicks would be returned to Australia to serve any sentence from the Military Commission if Hicks agreed to plead guilty. To speed the proceedings, all charges except the conspiracy one were dropped and Hicks entered his guilty plea on the second day of his “trial,” transforming the whole proceeding into a “circus.

The second “enemy combatant” to be charged is Omar Khadr. He was only 15 when the alleged crimes happened. And what were his crimes, or, at least, what does the government claim they are? There are four, two of which are conspiracy and providing material aid to the enemy. But the other two – murder and attempted murder – are not war crimes. The understanding among countries, governments, and international organizations is that killing an enemy soldier is permitted on a battlefield as long as the enemy is prepared, preparing to, or is in the immediate act of trying to kill you.

So why in a setting for war is Khadr charged with what are nominally criminal justice offenses? And why is this pattern set to be repeated in Guantanamo? Because the government is so unsure of its case that it mixes criminal justice offenses with forms of war crimes that are highly questionable.

The other prong of the attack on habeas corpus is the administration’s efforts to curtail the right of detainees at Guantanamo to competent legal representation. Considering that the detainees have effectively been stripped of the right to confront their accusers and to call witnesses and submit evidence in their defense, being able to speak with a lawyer as often as needed would be even more important than when the other rights are in force. But the government wants to limit visits by defense lawyers and their current clients to three and for new clients to one for the entire period up to the start of the “trial.”

In its petition to the U.S. Court of Appeals for the District of Columbia, the Justice Department alleged that the presence of the civilian lawyers constituted a security threat to Guantanamo because the lawyers carried information about the detainee’s status back to the press and could provide the detainees with verbal accounts of what was happening in the world at large. And, although most of the lawyers have security clearances, the Justice Department wants to be able to summarily preclude lawyers from seeing the “evidence” presented to the Combat Status Review Tribunals that classify detainees as dangerous or of intelligence value or as “illegal enemy combatants.”

One sentence seems to summarize the Justice Departments position: “There is no right on the part of counsel to access to detained aliens on a secure military base in a foreign country.”

Well, if the military base is secure, as the brief claims, if the base is on an island, if the internal structure of the prison consists of at least five separate compounds for housing detainees, including at least two large solitary confinement facilities, how can the government claim that visits between lawyers and their clients pose a security threat?

The short answer is the visits do not and cannot. The Justice and Defense Departments have 386 living, breathing bodies at Guantanamo (and the CIA has more elsewhere), most of whom are no threat or of no value to the U.S. in its anti-terror “war.” As for the rest, the government’s inability to develop cases stronger than it has for Hicks and Khadr, exposes the proceedings to interminable delays that invite renewed intervention by the federal judiciary on the basis of habeas corpus.

The trajectory thus would come full circle. The question is when, and at what cost?

Dan Smith is a military affairs analyst for Foreign Policy In Focus, a retired U.S. Army colonel, and a senior fellow on military affairs at the Friends Committee on National Legislation. His blog is “The Quakers’ Colonel”.