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A fundamental right in danger

IT'S LONG been apparent that many US citizens would watch fundamental rights be swept away with hardly a shrug. But it's stunning that our congressmen, elected officials sworn to bear true faith and allegiance to the Constitution, would actually vote to strip US courts of the power to protect essential rights.

And yet that's exactly what happened when Congress recently approved the Military Commissions Act to govern the treatment and trial of detainees held at Guantanamo Bay and other US detention facilities abroad.

In denying the writ of habeas corpus to noncitizens detained by the United States outside the country, Congress has turned its back on one of the most venerable of Constitutional protections: A prisoner's ability to go to court to challenge the lawfulness of his detention.

It's hard to overstate the importance of that right.

''It really is the fundamental underpinning of the rule of law,'' says Boston attorney Harvey Silverglate, a well-known civil libertarian. ''If the president can just pick anyone up and hold them, tell me what meaning there is to a court system. That is what the rule of law is all about: that an independent judiciary can deter mine whether or not you are being held legally.'' Indeed, the establishment of habeas marks the historical transi tion away from the whims of a despot and toward constitutional government.

In medieval times, an angry English monarch might have one carted off to the dungeon, there to languish without ever being accused of, much less tried for, a crime. It was as protection against that abuse that the writ of habeas corpus evolved in common law.

The writ meant that the crown had to demonstrate to the courts that someone was being legally held, and not arbitrarily detained.

Some trace the writ's origins to the Magna Carta, the wellspring charter of liberties English barons extracted from King John in 1215, which includes the guarantee that no free man could be ''imprisoned or dispossessed ..... except by the lawful judgment of his peers or by the law of the land.''

By the late 1620s, when parliament began knocking heads with Charles I over the true source of a sovereign's power, the right was much on their minds. It was part of the Petition of Right members sent Charles in 1628, which, William Duker writes in ''A Constitutional History of Habeas Corpus,'' abolished ''the king's power to imprison by special command without showing cause.'' In 1679 - by which time Charles had been sent to the block, Oliver Cromwell had run his tumultuous course, and the more agreeable Charles II had assumed the throne - parliament moved to establish habeas corpus more firmly.

As Duker relates, that action came a little more than a decade after parliament had signaled the importance it attached to habeas by impeaching the Lord High Chancellor of England, in part because he had sent ''divers of his majesty's subjects to be imprisoned against law, in remote is lands, garrisons, and other places, thereby to prevent them from the benefit of the law .....''

The Habeas Corpus Act of 1679, which some scholars rank behind only the Magna Carta in historical significance, enshrined and defined habeas in statute.

By Colonial times, the right was judged so essential that it was written into the US Constitution. Section nine of article 1 says: ''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.''

In US history, habeas has been suspended on only four occasions, most famously by Abraham Lincoln during the Civil War. Lincoln, whose administration went on to make some 13,000 arbitrary ar rests, found himself rebuked by Roger Taney, chief justice of the Supreme Court. Doing dual duty as a circuit court judge, Taney ruled that the president could suspend habeas only with the consent of Congress. Lincoln ignored his ruling.

It's this fundamental, time-honored right that the Republican Congress recently agreed to suspend as it raced to give President Bush a victory to frame the fall elections.

Now, some knew their vote was a cynical one. Senate Judiciary Committee Chairman Arlen Specter noted at the time that the Supreme Court is likely to look askance at legislation that denies detainees habeas. (Despite calling the bill ''patently unconstitutional,'' Specter voted for it.) We are not, after all, in a time of rebellion or invasion, the clear constitutional thresholds for suspending habeas.

So a high court with integrity would certainly act to protect the principle.

For many Americans, however, the attitude appears to be this:

Well, the detainees are all terrorists anyway, so who cares what rights they have?

To which the best answer is:

Absent a real trial, how can we be sure they are terrorists?

Or as Jonathan Hafetz, counsel at the Brennan Center for Justice at New York University School of Law, puts it: ''The question is not whether we should detain terrorists, the question is whether we should have a lawful and fair process to determine whether someone actually is a terrorist.

And that is what habeas protects.'' The administration, after all, has already released scores of prisoners, essentially conceding they weren't a threat after all.

Meanwhile, several detailed examinations have suggested that the evidence against scores of others is awfully flimsy.

''We simply swept up hundreds of people who never ought to have been there in the first place,'' says William Schulz, former executive director of Amnesty International and now a fellow at Harvard's Carr Center for Human Rights Policy.

Those who would qualify as prisoners of war from the hostilities between the United States and Afghanistan should have been afforded more rights, while those suspected of terrorism or war crimes should have been put on trial, says Katherine Newell Bierman, counter-terrorism counsel at Human Rights Watch.

''You can detain prisoners of war until the end of hostilities without trying them, but there are a whole lot of other protections and rights that come with that status,'' she says. ''Everyone else is a civilian. You can't just lock them up indefinitely without a fair chance for them to contest the basis of their detention.'' The administration, however, has created a legal black hole by declaring them all ''unlawful enemy combatants'' - a status that doesn't exist under international law - and asserting the right to hold them indefinitely.

Although some will be tried by military commissions - dubious justice, given the rules and procedures the new law establishes for those bodies - many more may not be tried at all, but only have their status reviewed annually by a military panel.

''To the best of their knowledge, they are going to spend the rest of their lives in incarceration, without an opportunity to defend themselves or appeal the decision,'' says Schulz.

By voting to deny detainees the right to mount a vigorous challenge to their detention, Congress has betrayed our precious legal heritage and set a troubling precedent that could someday come back to hurt our own soldiers.

That's why it's vital that the Supreme Court uphold habeas corpus by striking down this law.

Scot Lehigh's e-mail address is

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