If ever there has been cravenness hidden under bold rhetoric, it is the Habeas Corpus Restoration Act of 2007, brainchild of the Senate Judiciary Committee’s senior members, Arlen Specter and Patrick Leahy. This effort to return to the federal district courts the cases of alien enemy combatants held at Guantanamo Bay might more aptly be called the “Avoiding Congressional Accountability Act” — or, as the Brookings Institution’s Benjamin Wittes has tartly suggested, the “Leave It to Justice Kennedy Act.”
“Habeas Corpus Restoration” is in any event a misnomer. In first introducing the bill last year, Specter argued that the Military Commissions Act of 2006 (MCA) had impermissibly “suspended” habeas corpus despite the fact that the Supreme Court “in the Hamdi case made it plain that these habeas corpus rights apply to aliens as well as to citizens.” Where not flat wrong, Specter’s claims were misleading on several levels.
The writ can be “suspended” only if the persons in question are constitutionally entitled to habeas corpus in the first place. This would mean that Congress could not rescind their ability to challenge their detention in federal court, except in cases of rebellion or invasion. Alien enemy combatants, however, are not vested with rights under the Constitution. The 2004 Hamdi v. Rumsfeld case that Specter cited did not involve aliens at all. It involved an American citizen. To the extent a plurality of the Court asserted that aliens had habeas rights, that judgment was carefully limited to “every individual detained within the United States” (emphasis added). The alien combatants are of course detained in Cuba.
A companion case, Rasul v. Bush, did involve alien combatants, and the Court held that they could challenge their detention under the federal habeas corpus statute. But the justices did not hold that alien combatants had constitutional rights. (They will address this separate issue in the upcoming term.)
This is a crucial distinction. When rights are statutory, Congress is free to suspend, repeal, or amend them. That is precisely what it did after Rasul, first in the Detainee Treatment Act and, later, in the MCA. Here too Specter’s account is wrong. Congress did not “suspend” or otherwise eliminate habeas protection. Rather, it allowed the military process for challenging detention, the Combatant Status Review Tribunals (CSRTs), to go forward for each detainee. After that process (including any appeals in the military system) is complete, detainees have a right to challenge the military decision in a higher federal court: the U.S. Court of Appeals for the D.C. Circuit.
Far from a “suspension” of the writ, this marks the first time in American history that prisoners of war have been given systematic access to U.S. courts. Human-rights activists and liberal members of Congress complain that detainees have to wait too long to get the federal-court review, but that charge rings hollow. American citizens detained on state charges are not permitted habeas review in federal courts until all proceedings and appeals in the states have run their course. Why should foreign nationals at war with the U.S. have it any better? The military court system, moreover, is well respected; there is no reason to think that injustices in the CSRT process should not be addressed there before appeal to the D.C. Circuit.
The greatest flaw in the Specter/Leahy legislation, however, is its abdication of duty. The conduct of war — a core component of which is the handling of enemy prisoners — is a political responsibility, not a legal one. Yet rather than specify exactly what rights they would afford our terrorist enemies, the senators are trying to punt the matter to judges who are not accountable to voters and have near-total liberty to make up the rules as they go. Before long, this will ensure that CSRTs are well-nigh indistinguishable from civilian trials.
The War on Terror will last years, possibly decades, to come. U.S. military and intelligence operatives overseas will apprehend untold numbers of jihadists. It will be impossible to try many of them safely and effectively — either because they have been apprehended by troops whose job is combat operations, not the investigation of crimes and the preservation of evidence; or because trials would compromise precious intelligence sources or methods. These terrorists will have to be held to protect American lives, as the laws of war permit.
Sens. Specter and Leahy are welcome to express dissatisfaction with the CSRT procedures (though we believe their concerns are unfounded, and that there are adequate safeguards in place). But if they believe the current system is unjust, it is their duty as legislators to propose an alternative. Let them tell us what the detention proceedings for accused jihadists should look like. What rights will they have? What protections will ensure that intelligence is not compromised? The Hamdi ruling recognized that wartime detention proceedings should be deferential to the executive branch — implying that they differ from regular criminal trials. What exactly should these differences be?
In our system, such judgments are to be made by elected officials answerable to the voters whose live are at stake. The courts are a poor — and potentially dangerous — substitute.