JUST ENGAGE

Unfortunately, we tend to pit security and civil liberties against one another—as if the growth of one must impinge on the other, and the sum is always constant. It is true that on the margins there is a trade-off. However, it seems to us that if Congress and the Administration craft careful, thoughtful, and nuanced policies, that we have the potential to bolster our national security and enhance our civil liberties protections. The hard part is the details.

Habeas corpus rights for detainees designated captured during the War on Terror, held at Guantanamo Naval Base is one such detail. We believe that these detainees have rights. Just as importantly, giving these prisoners rights and due process enhances our national security. It is critical that we hold, try, and punish those that plot and execute attacks against Americans and American facilities. We also need to uphold the “idea” of America and protect our national reputation as a force for good, prosperity, and justice. Ultimately, that means, not squandering our resources (both material and international good-will) on holding individuals who have not tried to harm the United States. And we need to do this in a traditional and respected American way. Yet, there are constraints. Releasing the wrong person may result in another disastrous attack. Holding the wrong people, inflaming hatred, and supporting policies that have a tendency to radicalize, may also yield another disastrous attack. There is no way to know which would be worse.

What we need to do is quickly and accurately determine who is a threat to the United States and who isn’t. Those that are threats, based on solid evidence, need to be brought to justice as soon as possible. Those that aren’t threats, should be released immediately. There are many different ways of doing this. The Geneva Conventions provides guidelines for mini hearings to determine status. There is also the Combat Status Review Tribunals (CSRT) established by the Detainee Treatment Act. We could use traditional criminal habeas corpus proceedings. We can also develop new models. When reviewing these options, we need to consider several important questions. First, are we accurately determining who should be tried and who should be released? Second, does this system uphold our national commitment to the rule of law, our Constitutional principles, and a dedication to human rights? Lastly, what are the potential unexpected consequences of using this system? We need to weigh the options and decide which is best.

In a theoretical world, we can establish all kinds of rules and procedures. However, in the practical and political world where we live, there are two basic options on the table. The first is to continue using the CSRT process. The second is to allow detainees to file habeas corpus petitions in federal court. In addition to weighing the merits of each system, we must also compare their strengths and weakness. (Some are pushing for revising the CSRT process. That will be addressed in a separate blog post.)

Representative Saxton’s first point against offering detainees habeas corpus:

“(1) It gives foreign terrorists more legal protection than our own citizens and more than an enemy prisoner of war receives under the Geneva Convention and international law.

In practical terms, Habeas means a Guantanamo detainee will have direct access to federal court to challenge his imprisonment. Without Habeas, the Combatant Status Review Tribunal (CSRT), created by law just last year, determines if he's an enemy combatant and the Court of Military Commissions decides if he committed war crimes.”

In one sense, we agree with Representative Saxton's arguement.  Habeas corpus provides a good deal of protection. The habeas corpus system was not intended to be a way of determining status for combatants captured on the battle field. That being, that doesn’t mean that it doesn’t work. We use lots of tools for things they weren’t originally built for. That is a sign of strength, not weakness. The versatility of the system is an attribute. First, it is unclear why Representative Saxton believes this would give more protection to detainees than to our own citizens. (Right before the Supreme Court was going to hear the habeas petition of Jose Padilla, an American citizen held as an unlawful enemy combatant without charge, the Justice Department filed criminal charges against him and he was transferred to civilian custody. The point was then moot and the Supreme Court decided not to here the case. In general, if the federal government holds a US citizen without charge then the citizen can file a habeas petition and question their detention. That is the purpose of habeas corpus.) Anyway, it doesn’t matter if the protections are greater than those under international law. The issue is we shouldn’t employ a system with less. It is also unclear what the problem is with giving detainees access to the federal courts. The Constitution establishes the Judiciary as a check on the Executive Branch, making sure the Executive is complying with laws and treaties. We shouldn’t eliminate that check, it seems to be responsible to have method where an independent entity can review the process and outcomes and make sure it conforms to our domestic laws and international obligations.

The elephant in the room is the existing CSRT process. Congressman Saxton and other propoents of the CRST process imply that CSRT’s can successfully handle this duty, and therefore, habeas is excessive. However, CSRT’s are deeply flawed. They don’t achieve their goals fairly and accurately. The rules for the CSRT’s so heavily stack the proceeding against the detainee, there is little if any, independent judicial review. The CSRTs basically reaffirm the detainees’ designation. Without a second set of eyes, there is a greater possibility for mistakes. To answer the questions before, this system doesn’t accurately determine status—flaw one—and doesn’t uphold the traditional American values of an independent judiciary—flaw two. We have also begun to see the unexpected consequences. They are numerous and I won’t address them all here. (The habeas proceedings undoubtedly have unexpected consequences. However, since this procedure is older and better understood, there will be fewer of them.)

When we compare the traditional procedures of habeas corpus, which requires evidence and an evaluation by an independent judge, against the process of CSRT’s with secret evidence and a presiding officer instructed to favor the government’s case, we believe the habeas model is stronger. It has a greater ability to accurate identify those that want to hurt us and simultaneous upholds our values. The habeas process is recognized and more consistent. We can balance both security and civil liberties. By providing more protections, we respect our values and focus our resources on holding and trying those that really aim to hurt America. We preserve our shine our national reputation as beacon of liberty. America is great because we believe in treating all people humanely and with dignity, even when they wouldn’t do the same for us. We need to operate from a position of strength and conviction.