John Whitehead's Commentary

"The practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny."--Alexander Hamilton

Boumediene v. Bush, a case that is currently before the U.S. Supreme Court, may prove to be one of the most important wartime cases in a post-9/11 America. Its outcome will determine whether Congress and the President can deny detainees the right of access to U.S. civilian courts.

The case centers around Lakhdar Boumediene, who was labeled an "alien unlawful enemy combatant" by President Bush and has been detained at the U.S. Naval Base in Guantanamo Bay, Cuba, along with several hundred other prisoners. Denied any habeas corpus rights, Boumediene has been imprisoned for the past five years without access to a court or meaningful communication with the outside world, including his family. And unless the Supreme Court intervenes, Boumediene and the other detainees could well remain in this state of limbo for the rest of their lives.

As a nation of free people, it is in our best interests to ensure that such a thing does not happen.

The right to habeas corpus is the foundation stone of American liberty. That is why it is enshrined in the U.S. Constitution (Article I, Section 9). Latin for "bring forth the body," the Great Writ of Habeas Corpus 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?"

In other words, the writ of habeas corpus prevents the government from locking you up and throwing away the key. It ensures that justice is served: that the guilty are rightfully punished and the innocent are not wrongfully imprisoned and left without any recourse for gaining their freedom. This is especially critical for those who are suspected of wrongdoing, whether or not they are citizens of this country.

The plight of the Guantanamo detainees is a case in point. Many of them simply had the misfortune of being in the wrong place at the wrong time. According to a February 2006 study conducted at Seton Hall University, 86% of the detainees at Guantanamo were captured by Pakistan or the Northern Alliance and handed over to the United States at a time when the U.S. government was offering large bounties for the capture of suspected enemies. Only 8% of the detainees are characterized as al Qaeda fighters, and of the remaining detainees, 40% have no definitive connection with the terrorist organization at all.

It is highly questionable whether the government has any credible evidence on many of these detainees. Indeed, the Seton Hall report indicated that in 96% of the Guantanamo cases, the government had not produced any witnesses or presented any documentary evidence to the detainees before their hearings.

It could very well be that the government did not produce any witnesses or evidence because it has none. Lt. Col. Stephen Abraham was stationed at Guantanamo in 2004 in order to gather and validate information relating to Guantanamo detainees for use in military tribunals established to review detainees' status as "enemy combatants." However, Abraham soon found that "[w]hat were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence. Statements allegedly made by percipient witnesses lacked detail. Reports presented generalized statements in indirect and passive forms without stating the source of the information or providing a basis for establishing the reliability or the credibility of the source." Moreover, as he stated in his affidavit, "Statements of interrogators presented to the panel offered inferences from which we were expected to draw conclusions favoring a finding of 'enemy combatant' but that, upon even limited questioning from the panel, yielded the response...'We'll have to get back to you.'"

Americans have long adhered to the notion that a person is innocent until proven guilty. However, we cannot pick and choose when or to whom that principle should be applied. This is not to say that the detainees should be set free. Imprisonment is certainly appropriate and perhaps even necessary for those suspected of assisting terrorist organizations. However, imprisoning these individuals without providing them timely access to the courts goes against every principle we claim to stand for in the United States. After all, justice delayed is also justice denied.

Furthermore, when we deny habeas corpus to the Guantanamo detainees, we risk more than just locking up individuals who might be innocent. We risk undermining the fundamental democratic principles that hold our government and its leaders in check.

Boumediene v. Bush goes to the heart of the debate about what it means to mete out justice to the detainees. While we await the ruling, the nation would do well to consider what happened to Abu Bakker Qassim. Held at Guantanamo for four years before being released due to his request for habeas corpus, Qassim provides the best argument of why it is so important that detainees be given access to the courts.

As Qassim wrote in the New York Times, "I was locked up and mistreated for being in the wrong place at the wrong time during America's war in Afghanistan. Like hundreds of Guantanamo detainees, I was never a terrorist or a soldier. I was never even on a battlefield. Pakistani bounty hunters sold me and 17 other Uighurs to the United States like animals for $5,000 a head. The Americans made a terrible mistake. It was only the country's centuries-old commitment to allowing habeas corpus challenges that put that mistake right."

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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