by Jonathan Hafetz Baltimore Sun 9/22/06
More than two years ago, the U.S. Supreme Court ruled in Rasul v. Bush that prisoners at Guantanamo Bay have the right to challenge their detention in federal court through habeas corpus. No longer, the court said, could Guantanamo operate as a prison beyond the law.

In June, the Supreme Court reaffirmed that principle in Hamdan v. Rumsfeld, striking down the president’s jury-rigged system of military commissions established to try suspected terrorists for war crimes.

As an attorney, I had the opportunity to work on Rasul when John J. Gibbons, a retired federal appellate judge and partner at the law firm where I then worked, was asked to argue the case in the Supreme Court.

For me, the decision to participate in the case was simple. Yes, I was living in New York City on 9/11, and was close enough to the attacks on the World Trade Center to smell the smoke and feel the heat from the burning towers. But the question was not whether America could imprison terrorists. Of course it could – and must. Rather, the question was whether America would provide a fair process to determine who was a terrorist and who was innocent. That process was guaranteed by the writ of habeas corpus.

For centuries, habeas corpus has protected individual liberty against unlawful detention by the executive. The “Great Writ,” as it is known, was brought to America by the first English settlers and enshrined in the Constitution by the Founding Fathers. Just as it restrained English kings from summarily locking prisoners in the tower, it has forbidden American presidents from creating lawless enclaves like Guantanamo.

Habeas corpus is safeguarded so preciously that it has been suspended only four times in the nation’s history, and never under circumstances like the present. Past suspensions by Congress were instead carefully limited in duration and done amid an ongoing insurrection or invasion because it was determined necessary to preserve the public safety.

What habeas protects is as simple as it is vital: the power of a court to test the government’s asserted basis for a prisoner’s detention. It enables a court to listen to evidence and find facts, something judges have done in every courtroom in the country since this nation’s founding.