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SCOT LEHIGH

Testing the line between despotism and a free society

HABEAS CORPUS is now headed back to the US Supreme Court, in a case that will prove a fundamental test of US justice.

Will the Roberts court uphold one of the oldest and most basic rights in the US Constitution -- that of a prisoner to go to court to challenge his imprisonment?

The issue could also test the courage of the new Congress. Will the Democratic majority wage a determined fight to re-establish what has been a basic guarantee of procedural rights?

Last week, the United States Court of Appeals for the District of Columbia Circuit framed the coming struggle by upholding the new Military Commissions Act, which strips those detainees of habeas rights. The Bush administration pressured Congress into passing that statue after the Supreme Court twice ruled that detainees at Guantanamo had habeas rights under US law.

The Constitution makes clear the importance the founders attached to habeas, saying: "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."

The writ itself traces back to the Magna Carta; among its guarantees is the assurance that no free man could be "imprisoned or dispossessed . . . except by the lawful judgment of his peers or by the law of the land."

"Of all the rights in the Constitution, habeas corpus is probably the single most fundamental," says civil libertarian Harvey Silverglate. "It is the line between despotism and a free society. If the government can simply scoop you up and throw you in prison, never to be seen again, it's a sign that a crucial corner had been turned ."

If habeas rights are denied, that's essentially what will have happened to most of the detainees at Guantanamo; they will have disappeared into a black hole in the US legal system.

The Bush administration has framed the question as a matter of whether enemies of the US deserve American justice. The real issue is whether it's legitimate to imprison someone indefinitely without granting him a judicial hearing to challenge the basis of that incarceration.

"Habeas is not a 'get out of jail free' card," notes Jennifer Daskal, US advocacy director for Human Rights Watch. "It merely allows an independent check to ensure that detentions are lawful and that the US is detaining the right people."

Although Congress never explicitly suspended the constitutional guarantee of habeas, the appeals court sidestepped that matter by asserting that the detainees, as noncitizens held outside US territory, didn't have habeas rights in the first place.

If the high court rejects that reasoning, a key question then becomes, does the Military Commissions Act provide an adequate and effective substitute for habeas?

It's hard to see how. Already designated "unlawful enemy combatants," the vast majority of the 395 or so imprisoned there are entitled only to a yearly review of their status by a military panel.

"It is based on secret evidence, you don't have a lawyer, and there is no right to present evidence," notes Jonathan Hafetz, counsel at the Brennan Center for Justice at New York University School of Law. All of which makes it hard to believe the Supreme Court will concur with the appeals court -- the more so since, in her dissent, Judge Judith Rogers revealed gaping holes in the majority argument.

In Congress, an effort to restore habeas is underway.

And though a compliant Republican Congress rolled over last year, with Democrats in control, some lawmakers now appear ready to fight. Taking the lead is Democratic Senator Patrick Leahy of Vermont, chairman of the Senate Judiciary Committee, who has joined with former chairman Arlen Specter, a Republican from Pennsylvania, on legislation to restore habeas rights.

Although they currently count a majority of senators on their side, the two are working to maximize their tally, to send a message to the White House.

To avoid a filibuster or a veto, however, a statutory reassertion of habeas would probably have to be attached to must-pass legislation like the Department of Defense authorization.

It is a battle worth waging, certainly.

"This is having a horrendous impact on our standing around the world," says Daskal. "It is an easy target for America-haters to point to the policy of picking people up without process, holding them in what is essentially a black hole, and denying them access to the courts."

And besides, it's long past time we started living up to our own Constitution.

Scot Lehigh's e-mail address is lehigh@globe.com.

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