John Whitehead's Commentary

Gonzales: "There is no express grant of habeas in the Constitution. There's a prohibition against taking it away."

Specter: "Wait a minute. Wait a minute. The Constitution says you can't take it away except in cases of rebellion or invasion. Doesn't that mean you have the right of habeas corpus unless there's an invasion or rebellion?"

Gonzales: "I meant by that comment, the Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right to habeas. Doesn't say that. It simply says the right of habeas corpus shall not be suspended except..."

Specter: "You may be treading on your interdiction and violating common sense, Mr. Attorney General."
-- Excerpts from the exchange between Attorney General Alberto Gonzales and Sen. Arlen Specter (R-Pa.) at a Senate Judiciary Committee hearing, Jan. 17, 2007

For years now, America has been faced with a constitutional crisis over what the Constitution means and who it applies to. The passage of legislation such as the USA Patriot Act and the increasing government surveillance of American citizens have only served to deepen the crisis.

At present, the crisis is over the writ of habeas corpus, which is found in Article 1, Section 9, of our U.S. Constitution. Latin for "bring forth the body," this provision ensures that if you're being held in a jail or prison and haven't been charged with a crime, you have the right to go before an impartial judge and ask, "Why am I being held? What is the evidence against me?"

It doesn't mean that you'll be set free, but it does ensure that you're not held without valid cause or kept in the dark about your detention--unless, that is, you happen to be one of the roughly 400 prisoners being held at Guantanamo Bay (Gitmo), Cuba, who have never had the lawfulness of their indefinite detention judicially reviewed.

What most Americans don't realize is that only 8% of the detainees at Gitmo are even characterized as al-Qaeda fighters. Many of the prisoners insist that they have no link to al-Qaeda or other extreme Islamist groups--which is supported by documents provided by the U.S. military. And only 5% of the detainees were captured by American forces; according to the BBC, 86% of them were actually captured by bounty hunters and handed over in exchange for sizable financial rewards.

Yet in a 2-1 ruling, the U.S. Court of Appeals for the District of Columbia recently declared that such enemy combatants at Gitmo may not challenge their detention in U.S. courts. The court's ruling hinges on the premise that the Constitution does not extend habeas corpus to non-citizens who are held outside the sovereign territory of this country. And it sets a dangerous precedent. As an attorney with the Center for Constitutional Rights aptly observed, "This decision empowers the president to do whatever he wishes to prisoners without any legal limitation so long as he does it off shore. It encourages such notorious practices as extraordinary rendition and contempt for international human-rights law."

Not surprisingly, the White House is hailing the ruling as a victory and an affirmation of the Military Commissions Act, advocated by Bush Administration bureaucrats such as Alberto Gonzales and passed by Congress in October 2006. This law denies habeas corpus to enemy combatants and strips federal courts of any power to review possible wrongdoing by the government in matters relating to so-called "enemy combatants."

But whether prisoners are held within U.S. borders or on foreign shores, as long as they are in U.S. custody, our actions must be guided by the Constitution. Indeed, Alexander Hamilton, perhaps the most conservative of America's founding fathers, once said that the writ of habeas corpus, known as "The Great Writ," was perhaps more important to freedom and liberty than any other right found in the Constitution. In fact, this principle was so important to our founding fathers--people like Thomas Jefferson and Alexander Hamilton--that, unlike the Bill of Rights, which were amendments to the Constitution, it was included in the original document.

The right of habeas corpus was so important to the fathers of our Constitution because they knew from personal experience what it was like to be labeled enemy combatants, imprisoned indefinitely and not given the opportunity to appear before a neutral judge. Believing that such arbitrary imprisonment is "in all ages, the favorite and most formidable instrument of tyranny," the founders were all the more determined to protect Americans from such government abuses.

America's founders believed that this right would be the anchor for American freedom and democracy. They fought the War of Independence in part so that the lawless capture and detention of prisoners would never occur again. And just because the politicians and courts seem to have broken faith with the spirit of our founders, it does not mean the American people should follow suit.

It's easy to talk about freedom and democracy. But that's nothing more than idle rhetoric until the ideals and values they represent are put into practice.

You cannot spread freedom and democracy around the world if you're not practicing it at home. And how do you practice it at home? Well, start by treating enemy combatants like human beings. And by that I mean giving them a fair hearing before an impartial judge to determine their guilt or innocence. In that way, America can set the standard for the world.

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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