Famed libertarian legal scholar Richard Epstein testified in front of the Senate Judiciary Committee a few days ago about the detainee bill that was just passed and awaits Bush’s inevitable signature. What he said is very important.
Far more is at stake than lawsuits haggling over prison conditions. At stake is the fundamental right of any prisoner to test the lawfulness of his detention. Truth must count. Innocence must matter. An optional system of limited judicial review sidesteps both. Only habeas corpus can meet the need. To strip the federal courts of habeas jurisdiction for individuals captured in the war on terror would tear a hole in a fundamental guarantee of liberty. Unless we remain true to our own constitutional tradition, our efforts to advance the cause of freedom will be seen a cynical exercise in hypocrisy.
The important part of that statement bears repeating: truth must count. Innocent people have been falsely arrested, detained and even tortured already in this war on terrorism. The government has admitted, for example, that some 90% of the Iraqis who have been detained and interrogated were falsely accused, usually the result of a fake tip given by an informant with a tribal axe to grind or a personal grudge to settle. One innocent Canadian man of middle eastern descent was arrested and tortured for months. There must be some way of weeding out the innocent from the guilty. If we act as though we just don’t care, which is what this legislation does, we have allowed terrorism to destroy one of the very foundations of our way of life. The right of habeas corpus should not be set aside out of fear. Those who are detained and accused must be able to challenge their detention.
And do not be fooled by the argument that this bill only affects foreign terrorists. As Marty Lederman points out, the definition of “unlawful enemy combatant” applies to American citizens as well:
But the really breathtaking subsection is subsection (ii), which would provide that UEC is defined to include any person “who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”
Read literally, this means that if the Pentagon says you’re an unlawful enemy combatant — using whatever criteria they wish — then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to “hostilities” at all.
This definition is not limited to Al Qaeda and the Taliban. It’s not limited to aliens — it covers U.S. citizens as well. It’s not limited to persons captured or detained overseas. And it is not even limited to the armed conflict against Al Qaeda and the Taliban, authorized by Congress on September 18, 2001. Indeed, on the face of it, it’s not even limited to a time of war or armed conflict; it could apply in peacetime.
Andrew Sullivan has it exactly right:
Whatever else this is, it is not a constitutional democracy. It is a thinly-veiled military dictatorship, subject to only one control: the will of the Great Decider. And the war that justifies this astonishing attack on American liberty is permanent, without end. And check the vagueness of the language: “purposefully supported” hostilities. Could that mean mere expression of support for terror? Remember that many completely innocent people have already been incarcerated for years without trial or any chance for a fair hearing on the basis of false rumors or smears or even bounty hunters. Or could it be construed, in the rhetoric of Hannity and O’Reilly, as merely criticizing the Great Decider and thereby being on the side of the terrorists?
All I know is that al Qaeda is winning battles every week now. And they are winning them because their aim of gutting Western liberty is shared by the president of the United States. The fact that we are finding this latest, chilling stuff out now – while this horrifying bill is being rushed into law to help rescue some midterms – is beyond belief. It must be stopped, filibustered, prevented. And anyone who cares about basic constitutional freedom – conservatives above all – should be in the forefront of stopping it.
And for those on the right who say that Bush can be trusted to exercise this unbridled power only on the bad guys, ask yourself this: do you trust Hillary Clinton to do the same?