by Kevin Hough
On his first day in office, freshly-minted President Barack Obama issued a directive to suspend military trials at Guantanamo Bay, Cuba. This request was made in part to fulfill his campaign promise to close the Gitmo prison and as an effort to dramatically alter the course of the military proceedings against suspected terrorists and other “unlawful enemy combatants.”
It is, in part, a response to global accusations that the current manner in which the interrogation, detainment, and trying of said prisoners is conducted violates domestic and international law regarding detainee rights.
Article One, Section Nine of the Unite States Constitution states that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.”
This writ was adopted from the Magna Carta, considered by most to be the preeminent legal text from which modern American law is drawn.
It states that any person or institution known to be holding any other person captive must present said person to an established court so that evidence for his or her continued detainment may be offered. The purpose is to establish legal language to explicitly prohibit unlawful imprisonment.
It is important to note here the historical precedent set by this doctrine. Without this very basic right, no citizen or accused prisoner of war would be entitled to face his or her accuser in court.
In other words, without this writ, you can be picked up off the street and swept away to prison for indefinite detainment without any explanations, any formal charges, any legal counsel, and certainly without your one cherished phone call.
This right has rarely been challenged or suspended – rarely. Former President George W. Bush suspended this right in regard to prisoners captured during operations of the so-called War on Terror, many of whom are now being held at the soon-to-be-closed U.S. military prison at Gitmo.
This trampling of basic, universally recognized rights was done in stages, most notably with the signing of the Military Commissions Act of 2006. The act expressly disregards, even prohibits, exercise of the Geneva Conventions in the treatment of suspected “unlawful enemy combatants.” The Geneva Conventions, together with the Hague Conventions, make up the basis for international humanitarian law.
The debate quickly became: are “unlawful enemy combatants” entitled to the same rights as American citizens or “lawful” enemy combatants? And the follow-up question: if not, does that mean it’s fair game to electrocute their genitals? Alas, the latter is a question for another essay.
Now, this question of whether suspected terrorists are entitled to the same legal rights as non-suspected terrorists has many twists and turns. The yellow brick road is nowhere to be seen.
For one, there is the question of deciding when it is “lawful” to take arms against the United States. A little deeper into the same quandary, we encounter the problem of deciding whose decision it is to even answer the previous question.
To be clear, the goal of all this conjecture was to establish sufficiently elevated legal grounding from which to toss our most basic tenet of criminal justice: the right to challenge your imprisonment.
This topic has proven quite fertile to those who would attack or defend the Bush administration’s stance. Doubtless, the debate will continue, despite Obama’s plans to close Gitmo.
While this isn’t the first time habeas corpus has been suspended (the next-most-notable instance being Lincoln’s suspension during the Civil War), and likely will not be the last, I feel that the point, so far, has been missed by many of those currently weighing in.
The point is: there is a reason that American citizens are granted the right of habeas corpus. It is, without reproach, the simplest defense against government tyranny and oppression imaginable. As such, it is recognized to be granted to all Americans at birth and without challenge – well, almost without challenge.
Regardless of the implications of the morally questionable birth and maturation of this genuinely wonderful country, one thing is certain: we never got anywhere taking shortcuts in the face of adversity. And if Americans are to remain proud and secure in our supposed moral righteousness, it isn’t going to be by short-cutting the universal foundations of human rights.