Justice at Stake: Ensuring That Prisoners in the U.S. Are Never 'Disappeared'

Critics of the War on Terror have argued since 9/11 that the Bush administration's multifaceted betrayal of human rights and constitutional freedoms poses a greater threat to our society than the threat it means to address. From domestic spying to Guantanamo Bay, torture by U.S. authorities to kangaroo courts, our prevailing practices have undermined the notion that we operate according to the rule of law, leaving the War on Terror looking more like a War of Terror. The Military Commissions Act of 2006 (MCA) is an especially egregious case in point.

The MCA was ill-considered legislation passed in haste by a right-wing Congress that the American people have since rejected. Its most problematic provisions have drawn worthy criticism, but those provisions should not be repealed piecemeal. Instead, the MCA should be rescinded in its entirety. To the extent it offers any legitimate tools to law enforcement authorities, they should face calm, considered debate in the light of day.

Among the rights desecrated by the MCA are the right to representation and access to judicial review. The MCA rescinded habeas corpus for detainees at the president's whim, while Pentagon regulations have long restricted access by lawyers and the Red Cross to detention facilities. Not only have we condoned torture, we have muzzled lawyers seeking justice for its survivors.

The suspension of habeas rights is especially terrifying, for its original emergence heralded a world-historical shift in the tension between individual autonomy and rights versus arbitrary state power. Historically, the sovereign could act at will. "Off with his head" may seem a garish thing for the queen in Alice In Wonderland to say, but it was a decidedly less amusing edict for the subjects of pre-Magna Carta monarchs. Habeas was among the earliest and most fundamental bulwarks against such avarice, and our nation should pause before discarding it -- especially in the race to address a largely imaginary terror threat created by the idiocy of Republican presidents who armed and trained our current antagonists.

Without the right to demand that authorities "produce the body" of someone in their detention, U.S. authorities could -- like the Latin American paramilitaries they have long helped train -- simply make people disappear. When it still applied universally, habeas was a crucial check on the state's power to casually destroy people's lives.

On the one hand, the MCA suspended habeas only for some, namely "unlawful enemy combatants." And the first two military commissions conducted under its provisions -- as well as a panel of the U.S. Court of Appeals for the Fourth Circuit that recently ruled on the case of Ali al-Marri -- rejected the government's attempt to apply the MCA to the particular defendants before them. Finally, the Supreme Court recently agreed to hear the habeas appeal of Guantanamo detainees, reversing its prior decision to decline the appeal.

But on the other hand, the decision that halted the military commissions at Gitmo did so on the basis of a formalistic distinction between Congress' language in the MCA and the Bush administration's classification of detainees. That discrepancy will be either excused on appeal, or rectified by the administration -- which classified the detainees however it wished in the first place. Rigged Combatant Status Review Tribunals (CSRTs) offered a pretense of justice, while denying detainees even minimal procedural protections like the opportunity to challenge witnesses and contest evidence. And the Fourth Circuit ruling was exceedingly narrow, covering only enemy combatants living legally in the United States when captured. Finally, the Supreme Court is an unlikely source of relief, given that it rebuked the administration in the Hamdan case only because Chief Justice Roberts was ethically barred from hearing the case -- which he previously judged while interviewing for his Supreme Court nomination as a judge on the D.C. Circuit -- a second time.