by Jared Goldstein 9/28/06
Mohammed Daihani is a Kuwaiti accountant imprisoned by the United States at Guantanamo Bay for almost four years. I was one of the lawyers who brought a suit for habeas corpus on Mr. Daihani’s behalf, asking for an explanation of why the government was imprisoning him.

After the court ordered the government to explain its reasons for holding Mr. Daihani, the government released documents showing that military officials had concluded that Mr. Daihani had never taken part in any terrorist activities against the United States, and that he was not a member of al-Qaida, the Taliban, or any other anti-American group. Rather, Mr. Daihani was accused of having given a few hundred dollars to what he believed was a legitimate charity, which had given money to another organization, which, in turn, was alleged to be associated with al-Qaida.

After years of interrogations at Guantanamo, the military interrogators had come to realize that Mr. Daihani had not meant to give money to support terrorism, having had no inkling that his donation could have supported any terrorist groups.

Yet to the U.S. military it did not matter whether Mr. Daihani had intended to support terrorism or even known that he might have supported terrorism. Even if his support for terrorism was entirely accidental, the military designated Mr. Daihani an “enemy combatant,” and, on that basis, kept him locked up 24 hours a day for four years, in solitary confinement in a 9- by 6-foot cell, forbidding him to speak to his family or even to read a newspaper.

The absence of any evidence that Mr. Daihani had ever done anything to support terrorism came to light only because the right to seek habeas corpus was available. After the Supreme Court held, in 2004, that Mr. Daihani and the other detainees could seek habeas corpus, Mr. Daihani was allowed to meet with his lawyers, who worked for several years to win his freedom. More than a year after it became public that no evidence supported Mr. Daihani’s imprisonment, the government released him to Kuwait, his home country.

Congress is now poised to do something it has never done before: Take away the right of prisoners to seek habeas corpus. Since long before the United States became a nation, the right to seek habeas corpus has guaranteed that anyone imprisoned by the government may ask a judge to determine whether he or she is properly imprisoned. The right to seek habeas corpus has applied to prisoners regardless of whether they are citizens or foreigners, and no matter how dangerous they are accused of being, or how horrible their alleged crimes.

The right to habeas corpus has been a basic part of English common law, and, later, American law, since the adoption of the Magna Carta, in 1215, which established that no one could be imprisoned on the mere say-so of the king.

The founders of the United States considered habeas corpus to be such a fundamental protection against tyranny that they enshrined it in the Constitution. Congress has expanded the right to seek habeas corpus several times, and it has never tried to take the right away. To do so now would turn our backs on our fundamental principles of justice.

The Bush administration has proposed revoking this fundamental right for the 450 or so foreigners held at Guantanamo. If Congress goes along, no limits will remain on the government’s power to imprison people without evidence and without trial. Doubtlessly, the United States can and should lock up terrorists posing a threat to the nation — but it must do so within the bounds of law.

Our strength as a nation is demonstrated when we treat even our worst enemies within the rule of law.
The courts must be available — as they have been for centuries — to make sure that the people we imprison really are our enemies. If Congress takes away the right of Guantanamo detainees to go to court, the government will be able to wrongly hold people forever. There will be nothing anyone can do about it.

If Congress eliminates habeas corpus for the Guantnamo detainees has had a trial in which a judge looked at the evidence alleged to justify their imprisonment. If Congress takes away the right to seek habeas corpus, no one will ever know how many more prisoners are completely innocent.

The damage that unlawful imprisonment inflicts on people like Mr. Daihani is immeasurable. What can be known is the damage that eliminating habeas corpus would do to the United States: The United States would no longer be a nation under law but, rather, a nation without law.

Jared Goldstein is an associate professor at Roger Williams University School of Law, where he teaches constitutional and environmental law.

© 2006, Published by The Providence Journal Co.