Aziz Huq 5/14/07

Aziz Huq directs the Liberty and National Security Project at the Brennan Center for Justice. He is co-author of Unchecked and Unbalanced: Presidential Power in Times of Terror, and recipient of a 2006 Carnegie Scholars Fellowship.

Six months after Congress enacted the Military Commissions Act of 2006 with its eyes firmly on the polls, there have been many promises and proposals from legislators about how to remedy the damage done to civil liberties by that law–but little action. Despite the powerful advocacy of former military officials, religious figures, and law enforcement officials, Congress has as of yet failed to fix a single one of the MCA’s many flaws.

As efforts to rectify the MCA’s most egregious incursions of America’s separation of powers hang in the balance, it is worth recalling how much is at stake today–and how badly things could go wrong if enacted legislation doesn’t achieve real reform.

Proving than elections as well as emergencies can make bad law, Congress in the MCA bundled provisions that cut back on the supervision of executive branch actions in counter-terrorism operations. In particular, Congress made it easier to hold individuals without an adequate or lawful process to determine what they have in fact done to merit detention. It established a category of “Unlawful enemy combatant,” which is presently limited in function, but which may create an open-ended detention authority. And it’s of little use allowing people to challenge their executive detention in court, if the government can hold you for good reason, little reason, or almost no reason.

And that’s not to mention the system of “military commissions” established for terrorism cases that allow evidence from “torture lite,” a system that is wholly unnecessary for the protection of legitimate secrets because of the proven ability of the federal courts to handle such cases .

But perhaps the most immediately pernicious part of the MCA was a frontal assault on the rule of law: an attack on the writ of habeas corpus , the legal remedy historically used against unlawful detention by the executive, the remedy which allows a prisoner to go to court and demand that the executive demonstrate why his detention is lawful.

Habeas has a long history. From its inception, it was intimately tied to the project of restraining an unchecked executive branch: It is a purpose that is no less important today than it was centuries ago. Unchecked executive power is as much a problem today as it was four hundred years ago.

What the United States inherited from the British legal system was a tradition of resistance to abusive executive power. This tradition is usually anchored in the agreement called the Magna Carta, signed in 1215 at Runnymede, but it’s more accurate to trace it back to the early 1600s and to parliamentary responses to the first Stuart King James I.

Among the young Scottish king James’s claims to fame was his authorship of a book called the “The True Law of Free Monarchies.” Says James: “Kings are justly called gods; for they exercise a manner of resemblance of divine power upon earth. For if you will consider the attributes of God, you shall see how they agree in the person of a king. “ (Sound familiar? It should. The present administration has explicitly reached back to pre-Revolutionary monarchical practice in order to justify their approach to constitutional law.)

It was James son, Charles I, who stepped across the line by extending this principle of absolute power to the physical liberty of his subjects (in a case called Darnell’s case). Parliament’s reaction was speedy. In 1640, it responded with the first statutory protection of habeas corpus –a right to challenge the executive detention the first royal capital trial in British history.

Today, habeas remains important because the executive branch still claims to stand above the law. For the habeas-stripping provisions, while written broadly, really focus on one problem: Guantánamo.

The troubling prison facility was opened in early 2002, and was quickly filled with individuals captured down on the Afghan battlefield–and from places as far-flung as Bosnia, Thailand, and Gambia. Generally, in the conduct of wartime detentions, the military conducts “Article 5 hearings” to sort innocent shepherds from dangerous combatant. But the White House decided instead that the President could declare categorically that anyone detained was an enemy combatant–without any individualized determinations. The president’s declaration, memorialized in an order issued in February 2002, was not an effort to reflect reality. It was a “because I say so, it is.” It was, in other words, an assertion of the unilateral power to define reality.

As a result, the military has never had to justify its detention; it has never had to establish even to itself, that it caught the right people. Far easier to say that Guantánamo contained the worst of the worst. Far easier to argue that the federal courts have no power to hear cases from Guantánamo–an argument the Supreme Court rejected in 2004. Far easier to establish sham tribunals to rubber stamp virtually every detentions decisions (called CSRTs) rather than in fact justify detentions. And far easier to go to Congress, not once, but twice and shove through legislation that derogates from the age-old remedy of habeas corpus than have to explain to a federal court the unfettered usage of executive power to deprive individuals of their liberty without any explanation.

The result is detentions that are an embarrassment for the United States around the world, a powerful recruiting symbol for al Qaeda not to mention the tens of millions of dollars wasted in holding a group of prisoners who are likely largely innocent.

Restoration of habeas is one step in the restoration of government under law, and it should be a priority for a Congress that is devoted to real security, rather than charades of vigorous action that do nothing to keep us safe.

Nevertheless, as the possibility of a floor vote on habeas restoration looms, it is also worth keeping an eye on the means by which the administration might still seek to undercut accountability. This is a government that has proved remarkably agile in avoiding really answering for their bad decisions, and we can’t assume they will begin doing so today. There are three things to keep an eye on.

First, even once the habeas function of the federal courts is restored, who has the power to review the facts about an individual detention decision? When the key issue is who is a shepherd and who is a combatant, the facts matter deeply. But the CSRTs are really about finding the truth–they are about ratifying long-ago detention decisions that are in fact deeply unfair. Any law that does not allow the federal courts to do new fact-finding will be fundamentally flawed.

Second, who can be detained? Any new legislation must be scrupulously analyzed to determine whether it incidentally expands executive detention authority.

And finally, does the legislation in any way sign-off on the theory of vast executive power that the administration has consistently proffered? For that vision of open-ended power has not gone away. To the contrary, it’s the reason why this administration keeps going to such lengths to shield decisions from review: It is afraid that a court will not only strike down a particular erroneous decision, but will also invalidate the administration’s dangerous theory of unlimited power.

Habeas must be restored. By its inaction over the last six months, Congress has shown it has yet to grasp that security policy that undermines accountability does not make us more safe, even as it harms innocents. It is a problem that needs to be grasped–and needs to be grasped today.